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Class _ .CHS 
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A TREATISE 


ON TUB 

LAW RELATING TO POWERS AND DUTIES 

d* 7 

ATI 


BOARDS OF COMMISSIONERS, 


IN THE 


STATE OF INDIANA. 


WITH PRACTICAL FORMS AND COMMENTS ON THE DIFFERENT 
PROVISIONS OF THE STATUTE OF INDIANA CONFERRING 
JURISDICTION ON THE SAME. 


BY WILLIAM EGGLESTON. 

-- 


INDIANAPOLIS: 

INDIANAPOLIS JOURNAL CO., STEREOTYPERS AND PRINTERS. 




1873 . ‘ 

/N 







t>o 


Q 




Entered according to the act of Congress, in the year 1873, 
By WILLIAM EGGLESTON, 

In the office of the Librarian of Congress, at Washington. 


5s 

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H 




PREFACE. 


In presenting this work to the public, the author feels 
that the subject is a matter of very great importance to the 
people of the State. But having been written in the midst 
of onerous professional business, he feels fully persuaded 
that the volume will contain some inaccuracies. Under 
such circumstances, however, the author is inclined to the 
opinion that the public will be disposed to give him a gen¬ 
erous criticism. 

The object of the author in writing this work has not 
been for the purpose of enlightening the members of the 
legal profession of the State, hut for the purpose of furnish¬ 
ing the Boards of Commissioners throughout the State with 
a convenient guide for the performance of their official du¬ 
ties. But he thinks it may indeed be to some extent use¬ 
ful to the members of the bar. 

WM. EGGLESTON. 

Newport, June 17, 1873. 






















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AN ACT providing for the organization of County Boards, and prescribing 
some of their powers and duties. 

[Approved June 17, 1852.] 

Section 1. Be it enacted by the General Assembly of the 
State of Indiana , That there shall be organized in each 
county in this State, a board of commissioners for transact¬ 
ing county business, to consist of three qualified electors, 
any two of whom shall be competent to do business, to be 
elected by the qualified electors of the several counties re¬ 
spectively, at the general elections on the second Tuesday 
in October; and whenever a vacancy occurs in the office of 
such commissioner before the expiration of the term, the 
remaining commissioner or commissioners, together with 
the auditor, shall choose some person to fill such vacancy 
until the next annual election thereafter: Provided , The 
commissioners now in office shall serve out their terms of 
office respectively, and until their successors are elected and 
qualified. 

Sec. 2. Each county shall be divided into three districts, 
and numbered one, two and three, not subject to alteration 
oftener than every three years; but the districts now 
formed shall so remain until altered pursuant to the pro¬ 
visions herein contained; but such counties as are not 
divided into such districts, shall be so laid oft' by the board 
of commissioners at their first session after the publication 
of this act; and one commissioner shall be elected from 
the residents of each of such districts, by the voters of 
the whole county; and in any county where there are no 
commissioners, the auditor thereof shall divide the same 
into such districts. 

Sec. 3. At the first election held to choose the first 
board of commissioners of any county, the person having 
the highest number of votes shall continue in office three 


VI 


POWERS AND DUTIES OF 


years; the next highest, two years; and the next highest 
thereafter, one year; hut if two or more persons have the 
same number of votes, their terms shall be determined by 
lot, under the direction of the board of canvassers return¬ 
ing the election; and annually thereafter, one commis¬ 
sioner shall be elected, and shall continue in office three 
years, and until his successor is elected and qualified. 

Sec. 4. Each person elected as such commissioner shall, 
on receiving a certificate of his election, take the usual 
oath of office, which being certified on the back of such 
certificate under the hand and seal of the person admin¬ 
istering the same, shall be sufficient authority for such 
commissioner to act as such. 

Sec. 5. Such commissioners shall be considered a body 
corporate and politic, by the name and style of “ the Board 

of Commissioners of the county of-,” and as such, and 

in such name, may prosecute and defend suits, and have all 
other duties, rights and powers incident to corporations, 
not inconsistent with the provisions of this act. 

Sec. 6. Such commissioners shall meet at the Court- 
House or Auditor’s Office in each county on the first Mon¬ 
days in March, June, September and December in each 
year, and in counties whose population [is] under ten thou¬ 
sand, such commissioners may sit six days at such term; in 
counties whose population exceeds ten thousand and is 
less than thirty thousand they may sit nine days; but in 
counties whose population exceeds thirty thousand, such 
commissioners may sit fifteen days if the business of the 
term requires it. The enumeration to be fixed by the last 
census of the United States or the latest enumeration by 
the State. 

Sec. 7. The auditor of the county shall attend the 
meetings of such commissioners, and keep a record of their 
proceedings, and the sheriff of the county shall also, by 
himself or deputy, attend and execute their orders. 

Sec. 8. When two only of the members shall attend 
the meeting of the board, and a division shall take place 
on any question, it shall be continued until the next meet¬ 
ing before it shall be finally determined. 



COUNTY BOARDS. 


vii 

Sec. 9. Such commissioners shall adopt regulations for 
the transaction of business, and in the trial of causes they 
shall comply, so far as practicable, with the rules [of] con¬ 
ducting business in the circuit court. 

Sec. 10. The commissioners cf each county shall have 
a common seal; and copies of their proceedings, when 
signed and sealed by the said auditor, shall be sufficient 
evidence thereof, an the trial of any cause in any of the 
courts of this State. 

Sec. 11. Such commissioners, or the auditor, may ad¬ 
minister all oaths necessary to carry into effect the provis¬ 
ions of this act; and they shall have power to preserve 
order, when sitting as such, to punish contempts by tine not 
exceeding three dollars, or imprisonment not exceeding 
twenty-four hours; may enforce obedience to all orders 
made by them by attachment or other compulsory process; 
and when fines are assessed by them, execution shall issue 
therefor, and be collected and paid over as other fines. 

Sec. 12. In any county where the county business is 
done by justices of the peace, they shall continue to act, 
until the county commissioners shall be chosen and qualfied, 
and proceedings pending before such board of justices, or 
before any court in which they are parties, or which has 
been appealed from their decision, shall proceed to final 
determination under the authority of such commissioners, 
if the same be necessary, in their name, and all contracts 
made by or with such board of justices, or liabilities suf¬ 
fered by, for, or against them in their corporate capacity, 
shall be of the like effect as for or against such commis¬ 
sioners in their corporate capacity, and for and against such 
county as if such contracts had been entered into with and 
by such commissioners. 

Sec. 13. Such commissioners in their respective coun¬ 
ties shall have power at their meetings: 

1. To make orders respecting the property of the 
county in conformity to law, to sell the public grounds of 
the county upon which the public buildings are situate, 
and to purchase in lieu thereof, in the name of the county, 
other grounds in the county seat on which such buildings 


viii 


POWERS AND DUTIES OF 


shall be erected; to purchase other lands for the enlarge¬ 
ment of the public square, and to take care of and pre¬ 
serve such property 

2. To allow all accounts chargeable against such county, 
not otherwise provided for, and to direct the raising of 
such sums as may be necessary to defray all county ex¬ 
penses. 

3. To audit the the accounts of all officers having the 
care, management, collection, or disbursement of any 
money belonging to the county, or appropriated for its ben¬ 
efit, and, 

4. To perform all other duties which may be enjoined 
on them by any law of this State. 

Sec. 14. Such commissioners shall cause to be recorded 
in a book to be kept for that purpose, their proceedings 
and their determinations touching all matters properly cog¬ 
nizable before them; and all books, accounts, vouchers, 
papers, and documents, touching the business or property 
of the county, shall be carefully kept by the auditor, and 
open to the inspection of any person. 

Sec. 15. Such commissioners shall sit with open doors; 
and where there shall be no court-house, or it shall be un¬ 
fit or inconvenient, they may hold their meetings in the 
office of auditor, or in such other building as they may 
think proper. 

Sec. 16. Such commissioners shall cause a court-house, 
jail, and public offices for the clerk, recorder, treasurer and 
auditor, to be erected and furnished, where the same has 
not been done, and shall keep all the public buildings of 
the county in repair, and such offices, if practicable, shall 
be made fire proof, and shall be occupied by such officers 
respectively. 

Sec. 17. Whenever it shall be necessary to construct, 
complete or repair the court-house, jail, or other county 
building, or whenever it may be desirable to fund or aver¬ 
age any existing debt incurred for county purposes, and the 
revenues afforded by reasonable taxation are insufficient to 
do the same, the county commissioners may borrow for 
that purpose any sum of money not exceeding ten thou- 


COUNTY BOARDS. ix 

sand dollars, and issue bonds therefor, in amounts of not 
less than twenty-five dollars each, and bearing a rate of in¬ 
terest not exceeding the legal rate in the State or Territory 
where the same are negotiated. 

Sec. 18. Such bonds may be sold at any place within 
the United States, but at no greater discount than eight 
per cent., and shall be in form substantially as follows; 

State of Indiana, county of-: The county of- 

will pay to the bearer-years from the date hereof, the 

sum of --dollars and-cents with interest thereon 

at the rate of-per cent., payable annually at-, 

in the State of-, on the-day of-in each 

year. 

-, Commissioners of County. 

And there shall be attached to each of said bonds the 
certificate of the auditor of the proper county, in form as 
follows: 

I,-, county auditor, do certify that the annexed 

bond was issued to the county treasurer this-day of 

-A. D. In testimony whereof I have hereunto set my 

hand and fixed the seal of said board of county commis¬ 
sioners this-day of-, 18—. 

[seal.] -, County Auditor. 

Sec. 19. The county auditor shall deliver such bonds to 
the treasurer of such county, and charge him therewith 
upon the proper books in his office, and the same shall be 
deemed as a part of the funds of the county in the hands 
of the treasurer thereof, who shall be liable therefor upon 
his official bond as in the case of other funds or securities 
belonging to the county. 

Sec. 20. Such bonds shall be assignable by endorse¬ 
ment thereon, and such endorsement shall vest the property 
thereof absolutely in each and every endorsee successively. 

Sec. 21. Whenever the bonds are sold or negotiated as 
herein provided, the county commissioners shall make a 
levy of not less than one-tenth of one per cent, on the tax¬ 
able property of such county, and cause the same to be 
placed upon the tax duplicate, properly designated in a 
separate column for the current and succeeding year; and 












X 


POWERS AND DUTIES OP 


sucli tax, when collected, shall be invested in the bonds 
aforesaid, or other State and county securities, and there¬ 
upon shall constitute a sinking fund for the extinction and 
ultimate liquidation of the debt created by the issue of 
such bonds. 

Sec. 22. The board of commissioners shall provide by 
taxation for the annual payment of the interest accruing 
on all bonds sold, and for that purpose shall make a dis¬ 
tinct and specific levy, and cause the same to be placed in 
a separate column upon the tax duplicate, and such levy, 
when collected, shall be applied to the payment of the in¬ 
terest as aforesaid, and the balance, if any, to the payment 
of the principal of such debt, and for no other purpose 
whatever. 

Sec. 23. If such bonds, or any portion of them, shall 
not be sold as aforesaid, the county treasurer shall return 
them to the county auditor, who shall give him the proper 
credit therefor upon his books, and at the next session 
of the board shall lay such bonds before them. Such 
board shall cancel or otherwise destroy the same in the 
presence of such auditor and treasurer, and shall cause an 
entry of the fact to be made in the order book. 

Sec. 24. Ho allowance shall be made by such commis¬ 
sioners, unless such person [the claimant] shall file with 
such commissioners a detailed statement of the items, and 
dates of charge, nor until such competent proof thereof is 
adduced in favor of such claim, as is required in other 
courts; but if the truth of such charge is known to such 
commissioners, it may be allowed without other proof, 
upon that fact being entered of record in the proceedings 
about the claim. 

Sec. 25. Such commissioners shall annually allow the 
clerk of the circuit court, sheriff, and auditor, an annual 
compensation for all extra services, as such, not exceeding 
one hundred dollars each; but such allowance shall not be 
made to any such officer, until he shall file a detailed state¬ 
ment of his charge, with items and dates, to the truth of 
which he shall take and subscribe an oath: which allow¬ 
ance shall be in discharge of all compensation for all extra 


COUNTY BOARDS. 


xi 


and other services where no certain fee is fixed by law. 

Sec. 26. In all cases, where lands have been granted to 
any county for the purpose of a county seat, and town lots 
have been sold thereof, and the purchase money or any in¬ 
stalment thereof still remains unpaid, all proceedings neces¬ 
sary to be had to recover possession of any such town lot, 
or to enforce the payment of the purchase money, shall be 
instituted in the corporate name of the commissioners of 
the proper county. 

Sec. 27. When any claim exists for money advanced by 
any county officer, for the use or benefit of the county, 
pursuant to the provisions of law, or of any order of said 
board, or when there shall be any claim due to any com¬ 
missioner for locating the seat of justice of any county, 
such claim shall have preference, and [be] paid by the 
treasurer out of any money in his hands at the time, or 
any money which may first come into his hands after the 
presentment of the order therefor. 

Sec. 28. When any judgment has bpen obtained against 
commissioners in their corporate capacity, the public prop¬ 
erty of the county shall be liable therefor; but the court 
rendering such judgment may, before the issuing of ex¬ 
ecution, allow such board reasonable time, if the same is 
necessary, to assess and collect a reasonable amount of 
revenue to pay and discharge such judgment, in addition 
to the ordinary expenses of the county. 

Sec. 29. The board of county commissioners at their 
session in June, in every year, shall make a fair and accu¬ 
rate statement of the receipts and expenditures of the pre- 
ceeding year, and shall cause the same to be posted up at 
the court-house door, and at two other places in their 
county, and published in some newspaper of such county, 
if there be any. 

Sec. 30. Such commissioners may exempt from paying 
poll tax, any person who from any cause they may deem 
unable to pay it. 

Sec. 31. From all decisions of such commissioners 
there shall be allowed an appeal to the circuit or common 
pleas court, by any person aggrieved; but if such persor 


Xll 


POWERS AND DUTIES OF 


shall not be a party to the proceeding such appeal shall not 
be allowed, unless he shall file in the office of the county 
auditor his affidavit setting forth that he has an interest io 
the matter decided, and that he is aggrieved by such decis¬ 
ion, alleging explicitly the nature of his interest. 

Sec. 32. Such appeal shall be taken within thirty days 
after the time such decision was made, by the appellant 
filing with the county auditor a bond with sufficient penalty 
and sureties, to be approved by said auditor, with condition 
for the due prosecution of such appeal, and the payment of 
all costs, if the same shall be adjudged against said appel¬ 
lant. 

Sec. 33. Within twenty days after the filing of such 
appeal bond, the auditor shall make out a complete tran¬ 
script of the proceedings of said board, relating to the pro¬ 
ceeding appealed from, and shall deliver the same, and qll 
the papers and documents filed in such proceeding, and the 
appeal bond, to the clerk of the court to which such ap¬ 
peal is taken. # 

Sec. 34. When such appeal is taken by a person not 
a party to the proceeding, or when such appeal is taken in 
vacation, the appellant, if there be an appellee, shall cause 
a summons to be sued out of the clerk’s office of the court 
to which the appeal is taken, returnable on the first day of 
any term of such court next after the date thereof, requir- 
ing the appellee to appear and answer said appeal, which 
summons shall be issued and served as other similar process. 

Sec. 35. If such appeal shall be filed, and such sum¬ 
mons, when necessary, served ten days before the first day 
of the court next after such appeal, such cause shall stand 
for trial at such term; otherwise it shall be continued until 
the next term of the court. 

Sec. 36. All appeals thus taken to the circuit or com¬ 
mon pleas court shall be docketed among the other causes 
pending therein, and the same shall be heard, tried and 
determined as an original cause. 

Sec. 37. Such court may make a final determination of 
the proceeding thus appealed, and cause the same to be ex¬ 
ecuted or may send the same down to such board, with an 


COUNTY BOARDS. 


xiii 

order how to proceed, and may require such board to 
comply with the final determination made by such court in 
the premises. 


AN ACT providing for calling special sessions of Boards of County 
Commissioners. 

[Approved March 7, 1863.] 

Section 1 . Be it enacted by the General Assembly of the 
State of Indiana , That special sessions of the board of 
county commissioners of the several counties in this State, 
may be called whenever the public interests require it, first, 
by the county auditor; secondly by the clerk of the cir¬ 
cuit court, in case of the death or disqualification of the 
county auditor; thirdly, by the recorder of the proper 
county ? in case of the disqualification from any cause, of 
both the auditor and clerk of the circuit court. 

Sec. 2. At least six days notice of such special session 
shall be given, unless in the opinion of the officer calling 
the same, an emergency exists requiring a shorter notice f 
in that case the officer may fix the time at his discretion. 

Sec. 3. Special sessions of boards of commissioners 
called in pursuance of this act, shall be governed by the 
laws now in force regulating the proceeding and defining 
the powers of county commissioners at special sessions. 
























































































































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CHAPTER I. 

The Board of Commissioners , their election and organization . 

The word commissioner is derived from the Latin word 
commission and means a person to whom a commission is 
directed authorizing the performance of certain specified 
act. And the Legislature of Indiana in establishing the 
Board of County Commissioners in each county through¬ 
out the State evidently adopted that definition, as the dif¬ 
ferent Boards in this State only possess certain specified 
powers. 

The act approved June 17,1852, provides that each coun¬ 
ty in this State shall be divided into three districts, to be 
numbered one, two and three. The divisions were to be 
made by the different county boards that were organized 
under the act of 1843, and were in existence at the time 
the act of 1852 took effect. It provides that where there 
were no regular organized boards in existence in any of the 
counties of this State, at the time this act took effect, that 
the county auditors of such county or counties should 
make suck divisional) 

Each of these districts is entitled to one commissioner 
to be elected by the qualified voters of the entire county. 
The object of these divisions was evidently to have each 
particular locality and community throughout each county 
represented by a man who is acquainted with the wants of 
the people in his district. By adopting this method the 
wants of the people of the whole county are kept constantly 
before the board. 

This act provides that at the next annual election after 
the act of 1852 took effect, each county should elect three 
commissioners, one from each district. The candidate who 
received the highest number of votes to hold his office for 

(4) I Res. by G. & H., p. 247. 


(1) 1 Res. by G. & H., p. 247. 



2 


THE BOARD OP COMMISSIONERS, 


the term of three years; the one receiving the next highest 
for the term of two years, and the third highest for the 
term of one year. But commissioners elected at any suc¬ 
ceeding election were to hold their office for the term of 
three years.(l) So that under this act there is one commis¬ 
sioner that is elected or takes his office annually. The ob¬ 
vious intention of our legislature in making this provision 
in the law was in order that no county should at any time 
be under the control of inexperienced men. Under this 
wise provision-the majority of the board is always composed 
of men who have had, at least, one year’s practical experi¬ 
ence in the business pertaining to their office. 

ELIGIBILITY. 

In order to he eligible to the office of commissioner, the 
candidate must be a white male over the age of twenty-one 
years; he must have resided in the county for a period of 
one year before his election. He must also, at the time he is 
elected, be a resident of the district he intends to repre¬ 
sent.^) But after he is elected and qualified, and enters 
upon the duties of his office he can remove from one dis¬ 
trict to another of the same county and still hold his of¬ 
fice.^) 

What it takes to constitute residence has been a question 
of dispute among jurists for centuries. It has received the 
attention of many of the higher courts of this and other 
countries but has never yet been settled beyond controversy. 
The general definition is, that the party must have taken 
up his abode at a particular place with the intention of per¬ 
manently remaining there. Our Supreme Court, in the 
case of McConnel vs. White, defines residence to be the 
living in a given place with the intention of making it one’s 
home.(7) For further information in relation to this vexed 
question, the reader is referred to our notes. 

Notes. 

I. The domicile of a man’s birth is presumed to continue until he has se¬ 
lected another, but it is admitted that he can choose another domicile, and that 

(5) Article —, Sec. 4, Constitution of Indiana. (6) 24 Ind., 101. (7) 23 

Ind. 43. 




THEIR ELECTION AND ORGANIZATION. 


3 


he is not tied down to that of his birth. The evidence of such change of dom¬ 
icil is not well defined. No precise time of residence at his new selection has 
been prescribed as necessary to constitute it his domicile. If he has selected 
his new home with intention of remaining, this would seem on authority to be 
sufficient if he is actually at his new home. Russell vs. Randolph, 3 Amer. 
Law Reg. p. 560 . 

2 . To gain a domicile, or residence, in this State, the citizens of another 
State must remove, locate, and intend permanently to remain here; residences 
without such intention operates no change of political rights, and such resident 
cannot vote in this State. Thus, also, a resident in a county for any length of 
time on business, on a visit for pleasure, or for any temporary purpose, with in¬ 
tention to return to a domicile elsewhere, or with intention to remain for an in¬ 
definite time at least, is no abandonment of the former domicile, and gives no 
domicile in the county where such temporary sojourning is made, and conse¬ 
quently no right to vote at such temporary residence. French vs. Light, 4 Ind. 
475 , notes. 

3 . A single man can be no more without a fixed domicile than a man of a 
family, and though the domicile of the former may be more difficult to find and 
prove, yet the rules of evidence by which it is ascertained are the same as those 
applied to the domicile of other persons. Ib. 

4 . Upon a question of domicile, evidence of the conduct or declaration of 
the party afterwards as well as before may be received to ascertain his intention 
on a particular day. The word home is nearly synonymous with the word 
domicile. A residence within the meaning of our constitution is home. The 
best definition of a domicile seems to be, resident at a particular place, accom¬ 
panied with positive or presumptive proof of an intention to remain for an un¬ 
limited time. But the intention to acquire a domicile in any place is not suffi¬ 
cient without removal and location in that place. Domicile is acquired instan¬ 
taneously upon removal and location animo mancdi , or with intention of stay¬ 
ing. If a person has actually removed to another place with an intention of 
remaining there for an indefinite period, and is at a place of fixed present dom¬ 
icile, it is to be deemed his fixed domicile, notwithstanding he may entertain a 
floating notion to return at some future time. But the act and intention must 
be united and complete. And the party’s declarations coupled with his acts 
furnish the evidence of his intention. 9 Ind. 477 notes. 

5 . With regard to facts of intention, lapse or length of time, as proving the 
place of residence, the true principle on a view of the whole matter is, that, 
length of time alon« will not make the change from the old to the new resi¬ 
dence ; intention alone will not do it; but the two taken together do constitute a 
change of domicile. Still a person by a very long residence in a place may, per¬ 
haps, by residence alone give such clear evidence of his intention to abandon 
his former domicile as that the law will hardly receive any other evidence, such 
as his declaration to countervail it. 35 English Law and Equity, p. 540 - 2 . 

6 . And in case of doubtful domicile, residence, and especially very long con¬ 
tinued, is a controling circumstance. Emries vs. Smith, 14 Howard U. S. R., 
p. 423 . 

7. Of the few principles that can be laid down generally, I hold that time is 

2 


4 


THE BOARD OF COMMISSIONERS. 


the grand ingredient in constituting domicile. I think hardly enough is attrib¬ 
uted to its effects, in most cases unavoidably conclusive. It is not unfrequently 
said that if a person comes only for a special purpose, that he shall not fix a 
domicile. This is not to be taken in an unqualified latitude and without some 
respect had to the time which such person may or shall occupy; for if the pur¬ 
pose be of a nature that may probably, or does actually detain the person for a 
great length of time, I cannot but think that a general residence might grow on 
a special purpose. A special purpose may lead a man to a country where it 
shall detain him the whole of his life. I cannot but think against such a long 
residence the plea 'o’f an original special purpose could not be raised. It must 
be inferred in such cases that other purposes forced themselves upon him and 
mixed themselves into his original design, and impressed upon him the charac¬ 
ter of the country where he resides. 2 Robeson’s Admiralty Report, Ant ad 
p. 1801 . 

8 . A person’s place of residence as a criterian of domicile, it may be re¬ 
marked that a man’s dwelling house is first regarded in contradistinction to his 
place of business, trade or occupation. Abington vs. North Bridgewater, Pick¬ 
ering (Mass.) p. 170 - 8 . 

After a commissioner lias been elected, the clerk of the 
circuit court of his county must, after the expiration of ten, 
and within 20 days (if the election is not contested) from 
the time the board of canvassers have made their return, 
make out and deliver on demand of such commissioner, a 
certificate of his election.(10) After he recieves his com¬ 
mission he must present the same to the county auditor of 
his county, and take the necessary oath as required by sec¬ 
tion 4, article 15 of the constitution of Indiana,(a) which 
oath must be endorsed on the back of his commission. 

The oath may be in the following form: 

STATE OF INDIANA, \ _. 

-County, J 

I, John Smith, do solemnly swear (or affirm) that I will support the constitu¬ 
tion of the United States, and of the State of Indiana, and well and faithfully 

’ discharge the duty of Commissioner of- county, Indiana according to 

to law, so help me God. John Smith. 

Subscribed and sworn to before me, this —— day-, A. D. 187 _ 

In witness whereof I have hereunto set my hand and official seal. 

[seal.] Thomas Brown, Auditor. 

The commissioners are not required to give bond; there¬ 


to) 1 Res. by G. & H., p. 312 , sec. 38 . ( 11 ) 1 Res. by G. & H., p. 248 , sec. 4 . 
(a) 1 Res, by G. & H., p. 54 . 






THEIR ELECTION—HOW CONTESTED. 


5 


fore, as soon as they take the required oath, they are qual¬ 
ified to enter upon the duties of their office. 

VACANCY—HOW FILLED. 

Whenever a vacancy occurs in the office of commis¬ 
sioner, either by death, removal from the county, or by 
any other cause, before the expiration of the term, the re¬ 
maining commissioner, or commissioners, together with the 
auditor, shall choose some person to fill such vacancy until 
the next election thereafter. In order to do this the com¬ 
missioner or commissioners and the auditor should meet 
and select a suitable man from the same district from 
which the vacancy occurred. 

They must enter their proceeding of record, have the 
auditor to certify the appointment to the clerk of the cir¬ 
cuit court, who must commission the appointee at once, 
who after taking the oath required by law can enter upon 
his duties as such commissioner. (5) 

As a general rule the appointee will hold his office until 
the next election, but to this rule there are some exceptions. 
If the vacancy is produced by sickness, insanity, or any 
other temporary cause, the appointee will hold his office 
until the disability is removed.(6) A commissioner will 
hold his office until his successor is elected and qualified.(7) 

CHAPTER II. 

Their Election—I low Contested. • 

The different boards of county commissioners through¬ 
out the State have original exclusive jurisdiction in all 
contested election cases, except State officers. The contest 
for the office of judge of the circuit and common pleas 
court, and of the prosecuting and district attorneys, and all 
other district offices, must be brought before the Board of 
Commissioners of the county giving the largest number of 
votes for such office. (12) 

(5) i Res. by G. &. H., p. 247, sec. 1. (6) 8 Blackford, p. 132. (7) Sec. 3, 

Art. 15 Constitution of Indiana. Akers vs. State, 8 Ind. 484. (12) There is 

a typographical error in Sec. 16 of the act approved May 4, 1852; the word no 
before “contest,” in the second line of said section, should be all, and is so 
in the copy filed with the Secretary of State. 



6 


THE BOARD OF COMMISSIONERS. 


The contest for all county and township offices must be 
brought in the proper county, or in the county where the 
election for such offices took place.(13) 

In our remarks upon the practice and law governing 
trials in contested election cases, we shall confine ourselves 
to the office of commissioner, but as all contested election 
cases are governed by the same rules of law and prac¬ 
tice, what we shall say with reference to commissioners 
will be applicable to all contested election cases. 

Any legal voter may contest the election of any officer. 
To do so he must, within ten days after the board of can¬ 
vassers have met and declared such person elected, file 
with the auditor of the proper county a written statement, 
specifying the ground of contest, which statement must be 
verified by the affidavit of such elector. 

The election may be contested for any of the following 
reasons: / 

1. For the malconduct of any member or officer of the 
proper board of judges or canvassers. 

2. When the contestee was inelligible. 

3. When the contestee, previous to such election, shall 
have been convicted of infamous crime, such conviction not 
having been removed, nor such person pardoned at the 
time of his election. 

4. On account of illegal votes. 

But no illegality or malconduct of any member or officer 
of the board of judges or canvassers shall set aside the 
election of any person, unless such irregularity or malcon¬ 
duct was such as to cause the contestee to be declared 
elected when he had not received the highest number of 
legal votes. FTor shall the election be set aside for illegal 
votes unless the number thereof given to the contestee, if 
taken from him, would reduce the number of legal votes 
below the number of legal votes given to some other per¬ 
son for the same office.(5) 

Any elector who wishes to contest the election of any 
officer must make out his statement in a plain, concise man- 


(5) i Res. by G. & H., p. 318. 



THEIR ELECTION—HOW CONTESTED. 


7 


ner, without repetition, and in such a manner as to enable 
a person of common understanding to know what is intend¬ 
ed, (6) take it to the proper county auditor’s office and file 
it with the auditor, and have the same marked filed by the 
auditor. Merely leaving a paper in the auditor’s office is 
not filing it. (7) The petition or written statement may be 
in the following form: 


FORM NO. 1. 

STATE OF INDIANA, \ c<3 
-County. / ss: 

Before the Board of Commissioners of - County . 

John Smith vs. Richard Roe. 

To the Honorable Board of Commis'ers of the County of -; 

John Smith would represent to your honors that he is 
over the age of twenty-one years; that he has been a bona 
fide resident of the county and State aforesaid for a period 
of ten years. And he would further represent to your hon¬ 
orable body that at the October election for the year 1870, 
this complainant and one Richard Roe were opposing can¬ 
didates for the office of County Commissioner from the 

third district of-county, and that this complainant 

was a legal voter at said election and entitled to vote for 
himself or for the said 1 Richard Roe; that there were no 
other candidates in said district for said office at said elec¬ 
tion, and that all the votes cast in the aforesaid county at 
said election for commissioner for the third district afore¬ 
said were cast for this complainant and the said Richard 
Roe. That said Richard Roe received fourteen hundred 
and fifty votes, and this complainant fourteen hundred and 

twenty-five votes. That the said Richard Roe was on- 

day of October, 1870, declared by the Board of Canvass¬ 
ers of said county duly elected commissioner from the 
third district of said county of-, Indiana. This com¬ 

plainant says that the said Richard Roe was not duly and 

(6) 2 Res. by G. & H., p. 70. (7) 2 Ind. 91. 6 Ind. 309. 









8 


THE BOARD OF COMMISSIONERS, 


legally elected to the said office of commissioner from the 
third district of said county, but that this complainant was 
legally elected to said office by the qualified electors of said 
county. He therefore files this petition to contest the elec¬ 
tion of the said Richard Roe, for the following reasons: 

1. That there were cast for the said Richard Roe, at said 
election for said office of commissioner, from the third dis¬ 
trict of said county, and counted to him, forty illegal votes, 
cast by persons under the age of twenty-one years; and 
twenty-five illegal votes were cast and counted to the said 
Richard Roe for said office by non-residents of the State of 
Indiana. That all the illegal votes that were cast at said 
election for the said Richard Roe for commissioner afore¬ 
said were cast at the Union precinct, in Helt township in 
said county, and at Newport precinct, in Vermillion town¬ 
ship, in said county. That the names of the persons who 
cast said illegal votes are unknown to your petitioner. 

Your complainant therefore asks this honorable board to 
make inquiry into the facts set forth in this complaint, and 
after due investigation they find that the allegations afore¬ 
said are true, that your honorable body declare this com¬ 
plainant the duly elected candidate for the office of commis¬ 
sioner from the third district of said county, and so certify 
your finding to the Clerk of the Circuit Court of said coun¬ 
ty, and for all other proper relief.(8) 

JOHN SMITH. 

John Smith, being duly sworn upon his oath says that 
the foregoing statement and ground for contesting the said 
election of the said Richard Roe to the office of commis¬ 
sioner for the third district of- county, Indiana, are 

true in substance and matter of fact, as he is informed and 
verily believes. JOHN SMITH. 

Subscribed and sworn to before me this 15th day of Oc¬ 
tober, 1870. 

[seal.] JOHN SHORT, Auditor. (7) 

(8) Wheat vs. Ragsdale, 27 Ind. 191. (7) Curry vs. Baker, Governor, 3Z 
Ind. 151. 




THEIR ELECTION—HOW CONTESTED. 


9 


If the ground of contest is malconduct of any of the 
board of judges or commissioners, the following form may 
be used: 


FORM NO. 2. 

STATE OF INDIANA, 1 

-County, / ss: 

Before the Board of Commissioners of - County. 

John Smith vs Richard Roe. 

To the Honorable Board of Commis’ers of the County of -. 

Your petitioner would represent to your honors that he 
is over the age of twenty-one years; that he has been a bona 
fide resident of the county and State aforesaid for a period 
of ten years. And he would further represent to your hon¬ 
ors that at the October election for the year 1870, this com¬ 
plainant and one Richard Roe were opposing candidates for 
the office of County Commissioner from the third district 

of-county, and that this complainant was a legal 

voter at said election and entitled to vote for himself or for 
the said Richard Roe, and that there were no other candi¬ 
dates for said office. That the Board of Canvassers met 
on-day of-, 1870, and found that the said Rich¬ 

ard Roe had counted to him, by the Inspectors and Judges 
of the different election precincts throughout the county 
aforesaid, fourteen hundred and fifty votes, and your com¬ 
plainant fourteen hundred and twenty-five votes; they 
therefore declared that said Richard Roe was duly elected 
commissioner from the third district of said county. But 
your petitioner avers that said Richard Roe was not duly 
and legally elected commissioner from the third district of 

-county, but that your complainant was 'duly and 

legally elected to said office by the qualified voters of said 
county. Tie therefore files this petition to contest the elec¬ 
tion of the said Richard Roe to the said office for the fol¬ 
lowing reasons: 

1. For malconduct of Seth Thomas, Inspector of the 








10 


THE BOARD OF COMMISSIONERS. 


Union precinct, in Helt township, in said county, in this, 
to-wit: That the said Seth Thomas, inspector as aforesaid, 
did corruptly, unlawfully and fraudulently take out of the 
box in which the ballots were cast at said election precinct 
one hundred and fifty legal ballots deposited by legal elec¬ 
tors at said election, and before the same were counted, hav¬ 
ing on them the name of your complainant for the said 
office of commissioner for the third district of said county, 
and destroyed them, and put into said ballot box in lieu 
thereof one hundred and fifty ballots or tickets having there¬ 
on the name of the said Bichard Boe as a candidate for 
commissioner aforesaid, which fraudulent tickets so put in 
by said Seth Thomas aforesaid were by the Board of In¬ 
spection at the Union precinct aforesaid, and also by the 
Board of Canvassers, counted as legal votes cast for the 
said Bichard Boe. Your complainant therefore asks your 
honors to inquire into the facts set forth in this petition, 
and if you find they are true that you declare this com¬ 
plainant duly elected commissioner from the third district 
of said county, and that you certify your finding to the 
Clerk of the Circuit Court of said county. 

John Smith being duly sworn, upon his, &c., as in Bo. 1.(6) 

9. On filing your complaint or written statement with the 
auditor the law makes it his immediate duty to notify the 
Clerk of the Circuit Court, in writing, that the election of 
such officer is contested, and on receipt of this notice the 
clerk must withhold the commission until the question is 
finally determined, (d) The notice to the clerk may be in 
the following form: 

STATE OF USTDIABA, 1 
-County, | ss: 

To John Jones, clerk of the circuit court within and for 
the county and State aforesaid: You will take notice that 

on the-day of October, 1870, John Smith filed in my 

office his written statement to contest the election of Bich¬ 
ard Boe to the office of commissioner in and for the third 

( 6 ) 31 Ind. 151. 27 Ind. 191. ( d ) 1 Res. G. & H. f p. 318, sec. 17. 1 Res. 
G. & H., p. 318, sec. 38. 




THEIR ELECTION—HOW CONTESTED. H 

district of-county, Indiana, and that I have notified 

the board of county commissioners to meet at the court¬ 
house in special session, on the -day of October, 1870, 

at which time said contest will be determined. 

In witness whereof, I have hereunto set my hand and 
affixed my official seal, this-day of October, 1870. 

[seal.] JOHN SHORT, Auditor. 

On the filing of the petition the auditor must issue notice 
to each member constituting the board of County commis¬ 
sioners to meet at the court-house on a day to be designated 
by him, not less than ten nor more than twenty days from 
the time of filing the petition, or written statement, in his 
office* to meet in special session for the purpose of trying 
said contest. He must also issue a summons to the con- 
testee to appear at the time set for trial, to which summons 
there must be attached a copy of the written statement 
filed by the contestor. The notice to the commissioners and 
the summons to the contestee with the copy of the written 
statement should be delivered to the sheriff of the proper 
county by the auditor. The sheriff must, within five days 
after receiving said papers, serve the same on the contestee 
by delivering him a copy of such notice and written state¬ 
ment, or by leaving a copy thereof at his last usual place of 
residence.(lO) The notice to the commissioners may be in 
the following form: 


STATE OF INDIANA, 1 

- County, / 

To the sheriff of — 
manded to notify A, 


ss 


county: You are hereby com- 
B and C, who now constitute the 
board of commissioners of said county, to appear and be 

at the court-house in -, at nine o’clock A. M., on the 

-day of October, 1870, to hold a special session of said 

board for the purpose of trying the case of John Smith vs. 
Richard Roe, in which the said John is contesting the 
election of the said Richard Roe, to the office of commis¬ 
sioner for the third district of-county, and of this 


(io) I Res. by G. & H., p. 319, sec. 19. 









12 


THE BOARD OF COMMISSIOimiS. 


writ make due return. Given under my hand and seal, 
this-day of October, A. D. 1870. 

[seal.] JOHN SHORT, Auditor. 

The summons to the contestee may be in the following 
form: 

STATE OF INDIANA, 1 . 

-County, J 

To the sheriff of-county: You are hereby com¬ 

manded to notify Richard Roe to appear before the board 

of commissioners at the court-house in-, on the- 

day of October, 1870, at nine o’clock, a. m., to answer the 
charge of John Smith, in which he contests the election of 
the said Richard Roe to the office of commissioner from 

the third district of- county, to which office the 

board of canvassers of said county declared the said Rich¬ 
ard Roe duly elected on the -day of October, 1870. 

And you are further commanded to leave with the said 
Richard Roe a copy of the written statement of the said 
John Smith, which is hereto attached, at the time of the 
service of this summons, and of this writ make due return. 

[seal.] JOHN SHORT, Auditor. 

After the sheriff has served his writ as required by law, 
he must make due returns of his proceedings to the proper 
auditor. His return should be a concise history of his 
proceeding under the writ; it must be indorsed on the 
back of the writ, or on a paper attached to the writ. It is 
the duty of the auditor to issue subpoenas for witnesses at 
the request of either party.(a) The subpoena for witness 
must be directed to the sheriff of the county. The follow¬ 
ing form may be used: 

STATE OF INDIANA, \ 

-County, } SS: 

To the sheriff of said county: You are hereby com¬ 
manded to subpoena William Styles and John Hunt to 
appear before the board of commissioners of the county of 
-, at the court-house, on the - day of October, 


(a) i Res. by G. & H., p. 319, sec. 19. 











THEIR ELECTION—nOW CONTESTED. 


13 


A. D. 1870, to testify in an action wherein John Smith is 
plaintiff and Richard Roe is defendant, on behalf of the 

plaintiff, and of this subpoena make due return. This- 

day of October, A. D. 1870. 

JOHN SHORT, Auditor. 

At the time set for trial the board meets, and if the par¬ 
ties appear they proceed with the trial; and the rules of 
law obtaining in the circuit courts throughout the State 
must govern the board in the trial. They must try and 
determine the contest, as the law makes no provision for a 
jury trial in such cases. They have power to compel the 
attendance of witnesses, to swear and examine the same, 
to punish contempts as other courts, to adjourn or continue 
the trial from time to time not exceeding twenty days, to 
make the necessary orders for the payment of costs, and 
to coerce the payment of the same.(c) 

If, on the calling of the case, the plaintiff appears but 
the defendant does not, and if it appears from the return 
of the sheriff that the defendant has been served with 
legal process more than ten days before the time set for 
trial, (d) the board must have the defendant called three 
times by the sheriff and defaulted. After which the plain¬ 
tiff, or contestor should be required to introduce evidence to 
establish the allegation in his complaint, or written state¬ 
ment, and if the board is satisfied from the evidence that 
the allegations set forth in his complaint are true, they 
should so find, and enter their finding of record, as required 
by law. Rut if the defendant appears at the time and 
place set for trial, he must enter an appearance to the 
cause. This he can do only by plea, motion, entry on the 
record, or some other official acts.(5) The appearance may 
be special or general. A special appearance is made for a 
certain purpose only, and does not extend to all the pur¬ 
poses of the suit; a special appearance under our practice 
is generally made for the purpose of making preliminary 
objections, for defects in the process, etc. A general ap¬ 
pearance is a simple and absolute submission to the juris- 


(c) i G. & H., p. 319. ( d) 1 Res. G. & H., p. 319. (5) 3 Blackford, 325. 



14 


THE BOARD OF COMMISSIONERS. 


diction of the court. A general appearance waives all de¬ 
fects in the process or in publication.(13) If there are any 
irregularities in the notice or summons, the contestee 
should make a special appearance and move to quash the 
same. (14) If there is a defective service, move to set the 
service aside.(15) A special appearance for the purpose of 
making preliminary objections to the process does not cure 
defects in the process.(16) If there are no irregularities in 
the process or defects in the service, the defendant should 
enter a full appearance at once; and on entering an ap¬ 
pearance the board should enter an order of record for him 
to answer at a certain specified hour on that day or on 
some other day, to be designated in the order of the board. 
In making the order for the defendant to answer, the board 
should take into consideration all the circumstances sur¬ 
rounding the case, and give such time as in their judgment 
will be sufficient to enable the contestee to prepare his 
answer. At the time fixed for the defendant or contestee 
to answer, the board must see that their order is complied 
with, and the rule discharged. If the defendant or con¬ 
testee fails to answer, the duty of the board is clearly 
marked out by the statute, which provides that, “ If from 
any cause, either party shall fail to plead, or make up is¬ 
sues within the time prescribed, the court shall enter judg¬ 
ment as upon default, unless for good cause shown, further 
time be given for pleading, on payment of the costs occa¬ 
sioned by the delay.”(17) The defendant may discharge 
the rule by showing that there is a defect in the plaintiff’s 
or contestor’s complaint, or written statement, which will 
be an excuse for not answering, as he is not bound to an¬ 
swer a bad complaint. The objection to the defects in the 

(13) 19 Ind. 404, 3 Blackford 207, 8 Blackford 58. (14) 12 Ind. 257. 

(15) 2 Ind. 54, 9 Ind. 6, 12 Ind. 257, 1 B. & P. 250, 15 Ind. 374, 19 Ind. 
304, 13 Ind. 490, 10 Ind. 380, 19 Ind. 404, 3 Scam. 48, 2 Scam. 462, 25 Ills. 
107. (16) 3 Ind. 194, 5 Black. 212, 2 Ind. 289, 7 Ind. 447, 12 Ind. 70. (17) 2 
Res. by G. & H. p. 95, sec. 59, 9 Ind. 236, id. 357, id. 544. The cause was 
docketed for trial on the 5 th day of the term. At the calling of the docket for 
issue on the second day, a rule was taken to plead on the third day, and upon 
failure to plead the defendant was defaulted, and judgment rendered against 
him held no error. 9 Ind. 236. 



THEIR ELECTION—HOW CONTESTED. 


15 


complaint may be raised in different ways, but the most 
usual way is by 


DEMURRER. 

Section 50 of the statute provides that the defendant may 
demur to the complaint when it appears upon the face there¬ 
of either— 

1. That the court has no jurisdiction of the person of the 
defendant or the subject of the action. 

2. That the plaintiff has no legal capacity to sue. 

3. That there is another action pending between the same 
parties for the same cause. 

4. That there is a defect of parties plaintiff or defendant. 

5. That the complaint does not state facts sufficient to 
constitute a cause of action. 

6. That several causes of action have been improperly 
united. (18) 

It is to be observed that in order to enable the contestee 
to avail himself of the objection by demurrer, the defect 
must appear upon the face of the plaintiff’s or contestor’s 
written statement or complaint. (19) All defects not appa¬ 
rent on the face of the pleadings must be taken advantage 
of by motion or answer. Our practice act provides that 
“ when any of the matters enumerated in section fifty do 
not appear upon the face of the complaint, the objection 
(except for misjoinder of causes) may be taken by answer; 
if no such objection is taken either by demurrer or answbr 
the defendant shall be deemed to have waived the same ex¬ 
cept only the objection to the jurisdiction of the court over 
the subject of the action, and except the objection that the 
complaint does not state facts sufficient to constitute a cause 
of action. (20) 

The statute causes of demurrer are six in number. And 
the statute provides that “ for no other cause shall a demur- 

(18) 2 Res. by G. & H., pp. 77, 78, 79 and 80. (19) Hurt vs. Conn, 12 Ind. 

257. A demurrer only reaches such defects as are apparent on the face of 
the pleadings to which it is directed. Jones vs. Bradford et al., 25 Ind. 305. 
(20) 2 Res. by G. & H., p. 81. 



16 


TIIE BOARD OF COMMISSIONERS. 


rer be sustained; ana unless the demurrer shall distinctly 
specify and number the grounds of objection to the com¬ 
plaint it shall be overruled.(21) The demurrer may be for 
one or all the statutory causes, at the option of the party 
demurring. But in cases where one has doubt as to which 
objection he should make by demurrer, he had better adopt 
the safer rule and assign both objections. The demurrer 
need not be in the exact language of the statute, but if it 
points out substantially any one of the six defects mentioned 
in section fifty, supra , it will be sufficient. To illustrate the 
fifth subdivision of section fifty, say that the defendant may 
demur when the complaint does not state facts sufficient to 
constitute a cause of action, and when that statement is 
omitted and the demurrer proceeds to point out a fact nec¬ 
essary to constitute a cause of action which is not alleged 
in the complaint, it would be pointing out the objection in 
a different way, but would be substantially the same thing 
and would be good as far as it reached; it would be more 
specific and would not cover any other objection, save the 
one specifically pointed out, although there be a want of 
other necessary facts which might be reached if the lan¬ 
guage of the statute had been employed.(22) But a demur¬ 
rer must include, in terms or in substance, some one of the 
statutory causes of demurrer, if it does not it should be 
overruled.(23) 

Our Supreme Court, in the case of Kemp vs. Mitchell 
aijd another, where the following causes were assigned in 
the demurrer—1. ‘‘That the Circuit Court had no juris¬ 
diction 2. “ That the same is not sufficient in law to enti¬ 
tle the plaintiff to the relief demanded, v —held that the 
second cause of demurrer raised no question whatever for 
the consideration of the court, as such a cause for demurrer 
was unknown to our laws, and that a demurrer assigning 
only such an objection should be overruled.(24) 

And in the case of the Cincinnati and Chicago Kailway 
Company vs. Washburn, the same court held that a demur- 

(21) 2 G. & H., p. 8i. (22) The State on the relation of Robinson vs. Leach 

and others, io Ind. 308, 9 Ind. 359. (23) Lane vs. The State, 7 Ind. 426. 

(24) 29 Ind. 163, 



THEIR ELECTION—HOW CONTESTED. 17 

rer for the cause “ that the facts alleged did not entitle the 
plaintiff to the relief demanded” that the statute did not 
warrant a demurrer for that cause, and expressly requires 
such a one to be overruled.(25) 

But in the case Pace vs. Oppenlieimer, the same court 
held that a demurrer assigning the cause, “ that the com - 
'plaint does not contain facts enough to entitle the plaintiff to re¬ 
lief” was substantially good, and came under the fifth sub¬ 
division of section 50.(26) 

Remarks on Subdivision First. That the Court has no 
jurisdiction of the person of the defendant The word juris¬ 
diction, as used in this section, means “the authority by 
which a judicial officer takes cognizance of, and decides 
causes; ” or “ the power to hear and determine a cause.” 
The jurisdiction of the person of the defendant means, to 
have authority to bind the defendant by a judgment. The 
board of commissioners is a county court, whose jurisdic¬ 
tion is limited generally by the bounds of the county; and 
they have no jurisdiction of the person of a defendant out 
of the county, unless by some special statutory provision. 
Therefore, the first cause assigned for demurrer under sub¬ 
division first, will seldom occur in their court. But it may 
sometimes occur under section 16 of the act providing for 
the contesting of elections, etc. That section provides, 
“ that all contests for district and circuit officers shall be 
commenced and tried in the county giving the largest vote 
for such officer.” If a suit to contest the election of one 
of the officers in any other county save the one giving the 
highest number of votes for such officer, the board would 
have no jurisdiction of the person of the defendant, and if 
this fact appeared upon the face of the written statement, 
or the plaintiff’s complaint, the defendant may demur for 
the want of jurisdiction over the person of the defendant. 
(27) But jurisdiction of the person of the defendant may 
be waived by the act of the party.(28) If the defendant 
sued in the wrong county appears and goes to trial without 


(25) 25 Ind, 259. (27) 5 Blackf. 546. BicknelTs Civil Practice p. 45, »6 

lnd. 401. (28) 5 Blackf. 546. 



18 


THE BOARD OP COMMISSIONERS. 


making objection on that account, he waives the defect(29) 
as to jurisdiction of the court over his person. 

The court has no jurisdiction of the subject of the action. 

The subject of the action, as used in this section, means 
the subject matter of the action, which means the question 
present for the consideration of the court.(BO) If it ap¬ 
pears upon the face of the pleading that the court has no 
jurisdiction of the subject of the action, this will be a good 
ground of demurrer. The jurisdiction of the subject mat¬ 
ter of the action can never be conferred by the acts of the 
parties.(31) 

Remarks on Subdivision Second. That the 'plaintiff has 
no legal capacity to sue . This means that the plaintiff is not 
entitled to sue by reason of some personal disability. If it 
appears upon the face of the complaint that the plaintiff is 
an infant, a married woman, or an insane person, or an 
idiot, the defendant can demur for the reason that the 
plaintiff has no legal capacity to sue. It is provided by 
section 1 of the act governing contested elections, that 
the election of any person declared elected by popular vote 
to any office, may be contested by any elector who was en¬ 
titled to vote for such person. And if the contestor’s 
written statements or complaint fails to show that the (con- 
testor) plaintiff was a legal voter, and entitled to vote for 
the contestee, this will be a good cause for demurrer under 
the second division of section 50, supra . 

Remarks on Subdivision Third. That there is another 
action pending between the same parties for the same cause . 

If this defect appears upon the plaintiff’s complaint it 
will be a cause of demurrer; otherwise, the objection must 


1. .The capacity of a plaintiff to sue is independent of the cause of action, 
the facts showing the former are not facts constituting the cause of action.— 
Bank of Louisville vs. Edwards, n Howard, 216. 

2. The legal capacity of the plaintiff to sue is reached by demurrer, if it 
appears on the face of the complaint; if it does not so appear, then by answer. 
—Hollingsworth vs. the State, 8 Ind. 257. 


(29) 5 Blackf. 546, 17 Ind. 135, id. 325, 22 Ind. 163, 21 Ind. 321. (30) 17 
Ind. 135, Vansantwood’s Pleadings p. 660. (31) 17 Ind. 135. (32) Story 

E. P. S. 494. 




THEIR ELECTION—HOW CONTESTED. 


19 


be taken by answer, or it will be deemed to be waived. 
This cause for demurrer seldom occurs in court if there is 
another action pending between the parties for the same 
cause this rarely occurs on the face of the pleadings. In 
order to take advantage of this defect by demurrer, the 
complaint must disclose this fact on its face, and that the 
action is pending in some competent court of this State. 

If the complaint shows that ther j is another action pend¬ 
ing between the parties for the same cause in the court of 
some other state, this would not be a good cause for de¬ 
murrer. (33) 

Remarks on Subdivision Fourth. —That there is a defect 
of\parties , plaintiffs or defendants . 

It is provided by section seventeen of the code that “ all 
persons having an interest in the subject of the action, and 
in obtaining the relief demanded, shall be joined as plain¬ 
tiffs, except as otherwise provided in this chapter.” Section 
eighteen provides “ that any person may be made a defend¬ 
ant who has or claims any interest in the controversy ad¬ 
verse to the plaintiff, or who is a necessary party to a com¬ 
plete determination or settlement of the question involved.” 
Section nineteen provides “ that of the parties in the action 
those who are united in interest must be joined as plaintiffs 
or defendants; but if the consent of any one who should 
have joined as plaintiff* can not be obtained, he may be 
made a defendant, the reason thereof being stated in the 
complaint. (34) 

It seems that under these sections that all persons having 
an interest in the subject of the action and in obtaining the 
relief demanded, should be made plaintiffs; but if any one 
having such an interest refuses to join as plaintiff* in the 
action, then he must be made defendant. That all persons 
who have or claim any interest in the controversy adverse 

(33) 12 Ind. 607, 14 Ind. 385. The objection of a former action pending- 
cannot be raised upon a demurrer assigning for cause want of sufficient facts, 
but is itself a distinct cause of demurrer, and such objection cannot be made for 
the first time in this court. 21 Ind. 137. (34) 2 Res. by G. & II. pp. 46, 47, 
48, sec. 17, 18, 19. 

3 



20 


THE BOARD OP COMMISSIONERS. 


to the plaintiff, or who is a necessary party to the complete 
determination or settlement of the question involved should 
he made defendant. If any of the parties required by these 
sections be omitted, and that fact appears upon the face of 
the complaint, the defendant may demur for defect of parties. 
The defect of parties “ means to few, not to many parties.” 
(35) The demurrer must specify what party is improperly 
omitted or improperly joined.(3G) 

Remarks on Fifth Subdivision. — That the complaint does 
not state fads sufficient to constitute a cause of action . 

The words cause of action , as used in this subdivision, 
means “ matter for which the action may be brought.” 

Note. —A demurrer to a complaint for any other cause than the six specified 
by the code should be overruled. Hultor vs. The I. Sc C. Railroad Co., 7 Ind. 
622 , id. 426 , id. 664 ; 5 Ind. 375 , id. 284 , id. 53 c?, id. 194 , 249 ; 10 Ind. 308 ; 
12 Ind. 427 ; 35 Ind. 348 . 

A demurrer assigning for cause that the several paragraphs of the complaint 
are not good and sufficient in law, presents no issue of law. Porter et al. vs. 
Wilson et al., 35 Ind. 348 . 

A demurrer assigning any other cause than those specified in the statute, 
might be rejected on motion, or treated by the court as frivolous. Kensworth 
vs. Williams, 5 Ind. 375 . 

A demurrer is good in the language of the statute, and when the demurrer is 
not taken in the language of the statute, but points out a fact necessaiy to con¬ 
stitute a cause of action not alleged in the complaint is good so far as it goes, 
but does not embrace any objection to the sufficiency of the cause of action other 
than that specifically pointed out, although there be other defects that would 
have been reached by using the language of the statute. State vs. Leach, 10 
Ind. 308 ; Newcastle Railroad Co., 9 Ind. 359 ; Colson vs. Smith, 9 Ind. 11 , 
18 Ind. 79 . 

A demurrer assigning for reason, “ that the several paragraphs are not good 
and sufficient in law, raises no question for our consideration. It is not equiva¬ 
lent to the statement that the pleadings do not state facts sufficient to constitute 
a cause of action, nor is it any one of the statutory causes of demurrer. The 
statute enumerates and defines six causes of demurrer, and provides for no other. 

Many defects may exist in pleading besides the six which by the statute may 
be reached by the demurrer; these must be objected to and reached upon mo¬ 
tion. Campbell vs. Swazy, 12 Ind. 72 , 11 Ind. 280 , id. 458 , 8 Ind. 284 , id. 
354, 53°> 9 Ind - J 94> 13 Ind - 4^, 15 Ind. 361 . 

If the complaint is defective, the defendant should withdraw his answer and 
demurrer. He cannot move to dismiss or strike out pleadings for a technical 
defect. Williams vs. Post, 9 Ind. 551 . 


( 35 ) 17 Ind. 291 . ( 36 ) 15 Ind. 297* 




DEMURRER. 


21 


u A cause of action is said to accrue to any person when 
that person first comes to a right to bring an action.” The 
cause of action is the injury or wrong committed by one 
party upon the rights of another which will sustain a suit. 

Under this section you can follow the exact words of the 
statute, or you may point out the error in particular. But 

A demurrer applies merely to defects that appear on the face of the pleading. 
Hunt vs. Conn, 12 Ind. 257. 

A demurrer under one subdivision does not reach any defect except that 
pointed out by that subdivision. Collins vs. New, 9 Ind. 209, id. 194. 

A demurrer for defects of parties must point out the alleged defect 16 
Ind. 361. 

A demurrer to an answer in the following form, viz: The plaintiff demurs to 
the first, second, third and fourth paragraphs of the defendant’s answer, and as¬ 
signs for causes of demurrer that they do not state facts sufficient to constitute a 
defense to the action. Held that the demurrer was not separate to each para¬ 
graph named, but joint and to entire answer, and if any one paragraph was 
good the demurrer should have been overruled. Brown vs. Gooden, 16 Ind. 
444. The following form is substantially good: “ The complaint does not state 
facts enough to entitle the plaintiff to relief. 12 Ind. 533. 

When a complaint or bill of particulars filed therewith contained one good 
cause of action is not subject to demurrer. 16 Ind. 211. 

A demurrer to one of several paragraphs for misjoinder of cause of action in 
a different paragraph may be stricken out on motion, and perhaps an error com¬ 
mitted in refusing to strike it out might be corrected in the supreme court. 16 
Ind. 151. 

In case of a misjoinder of action there should not be a separate demurrer to 
each count, but one demurrer to the whole. 7 Blackf. 522, 16 Ind. 151. 

A cause of demurrer designating the alleged defects in the pleading to which 
they state with a sufficient degree of certainty are good, though not assigned in 
any approved form. 10 Ind. 183, id. 424; Railroad Co. vs. Ward, 9 Ind. 123, 
id. 241, 7 Ind. 426, 13 Ind. 232. A departure in pleading is not a ground of 
demurrer; the objection must be taken by motion. 15 Ind. 194. A departure 
in pleading is a good cause for demurrer. Reilly vs. Rucker, 16 Ind. 303. 

An objection that jurisdiction does not appear on the face of the complaint 
cannot be by demurrer. 9 Ind. 394, 10 Ind. 348. 

Duplicity, by our statute is not a ground, but is a violation both of the rules 
of pleading at common law, and of the third subdivision of section 56 of the 
code. 11 Ind. 280, 12 Ind. 174. 

The inconsistency of the reply with the complaint is the same defect known 
in common law pleadings as a departure. 8 Ind. 96, 12 Ind. 174, 9 Ind 189, 
5 Black. 21, id. 306, 7 Black. 33. 

An argumentative denial is good on demurrer. 14 ImL-455, 9 Ind. J09, 11 
Ind. 369, 14 Ind. 529, 

Repugnancy of allegations is not ground of demurrer under the code. 13 
Ind. 482. 




22 


THE BOARD OF COMMISSIONERS. 


if you undertake to point out the error in a special manner 
no other defect will be noticed. 

If the complaint contains several paragraphs, and there 
is a general demurrer to the whole complaint, if there is 
one good paragraph the demurrer should be overruled (d). 

A demurrer to an answer will not be sustained on the ground that the answer 
contained a denial of the plaintiff's allegation, and affirmative matter In avoid¬ 
ance. 8 Ind. 530. 

A demurrer may be general if it assigns specific causes. 9 Ind. 241. 

The defendant cannot be compelled to answer a complaint to which a demur¬ 
rer has been sustained, unless the record made by the ruling be changed. 14 
Ind. 537. 

The court must, it is presumed, judicially notice a demurrer, and see that it 
is in substantial conformity to the statute. 7 Ind. 427. 

A demurrer does not reach back through the pleading, unless on a question 
of jurisdiction. It is confined to the pleading to which it is immediately ad¬ 
dressed. 7 Ind. 627. 

The plaintiff by demurring which avers the cause of action in the second count 
admits the truth of the averment. 2 Ind. 176, 5 Black. 435. 

When in an action before a justice of the peace, the defendant demurred, his 
demurrer was overruled, there was finding for the complainant; he appealed, 
and did not present the question in Common Pleas Court. Held, he waived 
the fact. 12 Ind. 406. 

A demurrer was raised under the old practice by pleading over. 4 Black. 
449, 6 Ind. 394, 8 Ind. 134, 3 Ind. 346, 7 Ind. 711. The question is now 
raised by entering an exception. 8 Ind. 96, id. 357. 

A party by amending his pleading after demurrer has been sustained to it, 
waives his right to complain of the ruling on demurrer. 10 Ind. 180, 
4 Ind. 217. 

When the complainant demurs to the answer, but before the court has determ¬ 
ined the demurrer replies thereto, he thereby waives his demurrer. 13 Ind. 382. 

If a party demur, and pending his demurrer plead over, the pleading over¬ 
rules his demurrer; but if both could stand it be presumed general finding that 
the issue on both were referred to the court together. 14 Ind. 523. 

A party has a right to withdraw a demurrer at any time before judgment is 
recorded, unless the demurrer be frivolous. 1 Black. 301, 7 Black. 371. 

It is within the discretion of the court to permit it to be done, at any time 
before trial. 7 Ind. 490. 

A paragraph which is not a nullity should not be rejected on motion. 6 Ind. 
350, id. 219. 

A demurrer to a pleading containing two paragraphs should be overruled 
when one is good, n Ind. 458, 9 Ind. 241. 

A joint demurrer filed by two defendants should be overruled, unless it is 
well taken by both. 12 Ind. 533, 


id) 34 Ind. 28. 




DEMURRER. 


23 


Under this subdivision a party can not demur to a part of a 
paragraph. If there are unnecessary averments in a para¬ 
graph this can only be taken advantage of by motion to 
strike out. Unless the plaintiffs complaint states sufficient 
facts to authorize him to recover if he establishes these facts 
by the evidence, it is demurrable. 

Judge Story’s remarks upon the question of pleading is 
applicable in all cases under our code, “ that it is an elemen¬ 
tary rule of the most extensive influence that the bill should 
state the right, title or claim of the plaintiff* * with accuracy 
and clearness, and it should in like manner state the injury 
or grievance of which he complains and the relief which 
he asks of the court.” In other words, the complaint must 
contain a statement of all the facts which the plaintiff would 
be bound to prove under the general denial in order to mak e 
out his case, and unless it does it is subject to demurre r. 


It cannot be assigned for error that a demurrer was improperly sustained, if 
the same facts could have been given in evidence under another paragraph of 
the answer. 7 Ind. 374, id. 529, 6 Ind. 487, id. 477, id. 262, id. 309, 5 Ind. 224. 

A party cannot complain of a decision in his own favor upon demurrer, 
6 Ind. 387. 

* When an exception has been properly taken to a ruling on a demurrer, no 
motion for a new trial is necessary. 13 Ind. 332, 23 Ind. 507. 

A demurrer only reaches such defects as are apparent on the face of the 
pleading to which it is directed. 25 Ind. 305. 

A demurrer to the answer reaches back to the complaint, but a defect of 
parties cannot be reached in that way, that objection can be made only by de¬ 
murrer to the complaint 23 Ind. 395. 

Where the general denial has been pleaded, it is not error to sustain a de¬ 
murrer to another paragraph of the answer which alleges matter in denial of 
that which it would be incumbent on the plaintiff to prove to maintain his action, 
26 Ind. 83. 

Demurrer to an answer in abatement do not reach back to the complaint, for 
such answers are not addressed to the complaint. 18 Ind. 137. 

If a demurrer be to the whole pleading, and there is one good paragraph, it 
should be overruled. 17 Ind. 213. 

Where the demurrer is to an entire paragraph in a complaint for slander, it 
should be overruled if any set of words charged in the paragraph are action¬ 
able. 23 Ind. 507, id. 265. 

When an answer consists of several paragraphs and a single demurrer is filed 
thereto, in which the plaintiff says he demurs to each paragraph, &c., the de¬ 
murrer must be taken distributively, and it is equivalent to a separate demurrer 
to each paragraph, and may therefore be overruled as to part and sustained as to 
a part of the paragraphs. 19 Ind. 213. 



24 


THE BOARD OF COMMISSIONERS. 


Remarks on Subdivision Sixth.— That several causes of 
action have been improperly united . 

It is provided by section seventy of the code “ that the 
plaintiff may unite several causes of action in the same 
complaint, when they are included in the following classes; 

First. Money demands on contract. 

Second. Injuries to property. 

Third. Injuries to person or character. 

Fourth. Claims to recover the possession of personal 
property, wdth or without damages, for withholding the 
same and injury to property withheld. 

Fifth. Claims to recover the possession of real prop¬ 
erty with or without damages, rents and profits for with¬ 
holding thereof, to make partition of and to determine and 
quiet the title to real property.( 40 ) If the plaintiff has 
united causes of action not authorized by this section, a de¬ 
murrer filed for this reason should be sustained. But be¬ 
fore the Board of Commissioners one will seldom, if ever, 
have an opportunity to file a demurrer for any other than 
the fifth statutory cause. 

MOTION TO STRIKE OUT. 

But it sometimes happens that the plaintiff has inserted 
in the same paragraph of his complaint some good and some 
bad allegations. When this occurs you can not demur, but 
you should move to strike out the irrelevant matter. It is 
provided by the code that “all frivolous demurrers and mo¬ 
tions shall be overruled, all sham defences shall be rejected, 

A single demurrer which purports to be filed to each of several paragraphs 
of a complaint or other pleading, should be taken distributively as a separate 
demurrer to each, and may therefore be overruled as to- part and sustained as to 
a part of the paragraphs. 20 Ind. 62, 19 Ind. 213. 

A demurrer to a complaint on an administrator’s bond assigning several 
breaches, one of which is well assigned, should be overruled. 19 Ind. 27. 

When a reply consists of two paragraphs, of which one is the general denial, 
and the demurrer is filed to the reply generally, it is error to sustain it, because 
such demurrer is addressed to the whole complaint. 19 Ind. 90, 11 Ind. 458, 
9 Ind. 241. 


(40) 2 Res. by G. & H., p. 96, sec. 70. 




MOTION TO STRIKE OUT. 


25 


all surplusage tautology and irrelevant matter shall be set 
aside, when pointed out by the party aggrieved.( 41 ) "When 
several paragraphs of complaint are substantially the same 
in legal effect, they may all but one be stricken out on mo- 
tion.( 42 ) When the general denial is pleaded with another 
paragraph which sets up matter that might be given in evi¬ 
dence under the general denial, the latter paragraph should 
be stricken out on motion.( 43 ) If a “ plea shows on its face 
that it is a sham plea, it should be rejected on motion.( 44 ) 

It is provided by section ninety of the code that “ when 
the allegations of a pleading are so indefinite or uncertain 
that the precise nature of the charge is not apparent, the 
court may require the pleading to be made definite and cer¬ 
tain by amendment.”( 45 ) In order to reach defects of this 
character you must move the board for an order to compel 
the plaintiff to make his complaint more definite and cer¬ 
tain. If your motion is sustained the board will enter an 
order of record that the plaintiff’ will make his pleading 
more definite and certain, by amendment, against a certain 
day, or hour, to be designated in their order.( 46 ) Or you 
may put your motion in a different manner, and move that 
the plaintiff make his pleading more specific.( 47 ) It is 
always the best, in order to present your motion in a clear, 
unambiguous light to the court, to reduce it to writing, but 
an oral motion to strike out pleading or to make more spe¬ 
cific, &c., will be entertained by the court.( 48 ) But the Cir¬ 
cuit Courts throughout the State possess the power to estab¬ 
lish such rules of practice as they may deem necessary to 
facilitate business and to further the ends of justice in their 
courts. Hence they may by such rules require all motions 
to be reduced to writing.( 49 ) A demurrer which assigns 

(41) 2 G. & H. p. 102, sec. 77. (42) 21 Ind. 492, id. 471, 18 Ind. 273, 29 

Ind. 618, 25 Ind. 352. It is not error for the court to refuse leave to file 
answer setting up a sham defense. 25 Ind. 90. (43) 7 Black. 526, 8 Black. 256, 

4 Ind. 630, 11 Ind. 284, 12 Ind. 41. (44) 1 Black. 347, 5 Black. 287. (45) 

2 G. & H. p. 112, sec. 90. When some relief is sought by way of motion 
pending the cause, the same fullness and particularity are not necessary which 
would be required in an original complaint. 20 Ind. 232. (46) 27 Ind. 191, 

19 Ind. 10. (47) 17 Ind. 291. (48) 22 Ind. 178. (49) 22 Ind. 178, 20 Ind. 
232. A motion to strike out a part of a pleading need not be in writing 
unless required by a rule of the court in which it is made. 22 Ind. 178. 



26 


THE BOARD OF COMMISSIONERS. 


no cause, as required by the statute, should be stricken out 
on motion.(a) 

After the questions as to the sufficiency of the complaint 
have been settled, the defendant must file his answer. And 
the code provides that the answer “ shall contain a denial 
of each allegation of the complaint controverted by the 
defendant, or of any knowledge or information thereof suf¬ 
ficient to form a belief.” “ A statement of any new matter 
constituting a defense, counter-claim, or set off, in plain, 
concise language without repetition.” And he may set forth 
in his answer as many grounds of defense, counter-claims 
and set off, whether legal or equitable, as he shall have. 
Each shall be distinctly stated in a separate paragraph and 
numbered, and clearly refer to the cause of action intended 
to be answered.( 50 ) 

Under these sections our Supreme Court, in the case of 
Carpenter et al. vs. Mercantile Bank, held that a plea in 
abatement could not be pleaded in connection with a plea 
in bar.( 51 ) 

And in the case of Jones vs. Cincinnati Co., the same 
court held that a plea in abatement should always precede 
answers to the merits. ( 52 ) 

But in the case of Thompson vs. Greenwood, they over¬ 
ruled all former decisions upon this point, and held that all 
the defenses, both of law and facts, must be filed at the same 
time, and the issues formed under them must all be tried 
together. (5 3 ) 

The following is the statutory form for an answer: 

STATE OF INDIANA, - County: 

Before the Board of Commissioners: 

John Smith vs. Richard Roe. 

The defendant, for answer herein, says that he denies each 
and every allegation of the complaint. 

RICHARD ROE. 

{a) 29 Ind. 360. (50) 2 Res. by G. & H. p. 83, sec. 50. (51) 17 Ind. 236. 

(52) 14 Ind. 89; 16 Ind. 402, 17 Ind. 447; 11 Ind. 398. (53) 




ANSWER. 


27 


Form for plea in abatement. 

STATE OF INDIANA, - County: 

John Smith vs. Richard Eoe. 

The defendant pleads in abatement of the writ and com¬ 
plaint herein that the contestor, John Smith, was not at the 

October election, in the year 1870 , a legal voter of- 

county, but that he was then* and now is, a minor, under 
the age of twenty-one years. Wherefore the contestee 
prays that the writ and complaint may abate. 

RICIIAED EOE. 

Subscribed and sworn to before me this-day of-, 

1870 . JOHN SHORT, Auditor. 

A plea by way of confession and avoidance, after enti¬ 
tling as above: 

The defendant for answer herein says, that if the fraud¬ 
ulent votes mentioned in the contestor’s written statement 
were cast for this defendant, at said election, that if these 
votes are taken from the whole number of votes cast for 
this defendant at said election, that he still has the majority 
of the legal votes of said county, for the reason that there 
were cast and counted to the contestor, Eichard Eoe, for 
commissioner from the third district of said county at the 
Union precinct, in Ilelt township, one hundred and fifty 
illegal votes; that these votes were cast by persons whose 
names are unknown to this defendant, he therefore prays 
judgment for costs. EICHARD EOE. 

It is provided by the code that “ when it is necessary for 
the defendant to bring a new party before the court, he may 
state the matter relating thereto in h*is answer and demand 
relief, and thereupon a summons shall issue and other pro¬ 
ceedings be had against him as if such matter had been ex¬ 
hibited in the original complaint.”( 54 .) And in the case of 
Conklin vs. Bowman our Supreme Court, in commenting 


(54) 2 Res. by G. & H., p. 92. 





28 


THE BOARD OP COMMISSIONERS. 


on this section says: “ This rule of practice, as we under¬ 
stand it, contemplates a necessary party against whom relief 
is sought and final judgment may be rendered.’’ “The 
answer must not only state the matter relied on for relief, 
but must contain a prayer for such against the proper new 
party.” (5 5 ) 

But in contested election cases the defendant will seldom 
if ever have an opportunity to exercise the right guaran¬ 
teed to him by this section. And it is further provided by 
the code that, when the facts stated in the answer are not 
sufficient to constitute a cause of defense, the plaintiff* may 
demur to one or more of several defenses under the same 
rules and regulations as heretofore prescribed for demur¬ 
ring to the complaint.( 56 ) The answer is an allegation by 
the defendant that is calculated, if true, to defeat or lessen 
the plaintiff’s right to recover; and unless the allegations 
in the answer, if established by the evidence, would ac¬ 
complish one of these objects, it would be clearly bad on 
demurrer. 

The question that the members of the board should pro¬ 
pound to themselves and answer, in arriving at a conclusion 
upon the sufficiency of the answer, is this: Will the matter 
set up in the answer, if established by the evidence, defeat 
or lessen the plaintiff’s right to recover under the allega¬ 
tion of his complaint. And if after a mature considera¬ 
tion, they answer this question in the affirmative, they 
should overrule the demurrer to the answer, but if they 
find in the negative, the demurrer should be sustained. If 
the defendant in his answer attempts to answer the whole 
complaint, when in fact he only answers a part, it will be 
bad on demurrer.( 57 ) 

The following is the form of demurrer to answer: 
STATE OF INDIANA, \ co . 

- County, J 

Before the Board, of Commissioners of - County. 

John Smith vs. Richard Roe. 

The plaintiff* demurs to the answer for the reason that it 

( 55 ) 11 Ind. 254. (56) 2 Res. G. & H. p. 92, sec. 64. (57) Feaster vs. 
Wooddeld, 23 Ind. 493. 



ANSWER. 29 

does not state facts sufficient to constitute a cause of de¬ 
fense. 

JOHN SMITH. 

If there is a demurrer filed to a whole answer, and it 
consists of several paragraphs, if any one of the paragraphs 
contains a good defense, the demurrer should be overruled. 

( 58 ) We state on ante , p. — that the defendant could set 
up as many defenses as he may have, &c., but that they 
must be set up in separate paragraphs and numbered. 
And our supreme court in the case of Wilson vs. The Ev¬ 
ansville and Cleveland Railroad Company, in commenting 
upon section 56 of the statute, held that “ Whenever a 
party, therefore, assuming that he has different grounds of 
defense, whether they really amount to such or not, sets 
them up in separate paragraphs, he should number them, 
and if he did not, this court could not say that the court 
below erred in sustaining a demurrer to the whole answer.” 

( 59 ) Our supreme court, in the case of Brown vs. Gooden, 
held that a demurrer in the following form, “ The plaintiff 
demurs to the first, second, third and fourth paragraphs of 
the defendant’s answer, and assigns for cause of demurrer 
that they do not state facts sufficient to constitute a defense 
to the action,” was not a separate demurrer to each para¬ 
graph, but joint and to the entire answer.( 60 ) But in the 
case of Parker vs. Thompson, the same court held that a 
demurrer in the following form, “ The plaintiff demurs to 
each paragraph of the answer, etc.,” should be taken dis- 
tributively, and was equivalent to a separate demurrer 
filed to each paragraph of the answer.( 61 ) 

The plaintiff can move to make the answer more specific 
or to strike out irrelevant and redundant matter, &c. And 
the same rules that apply to motions of this character when 
made to the complaint, will govern motions to the answer. 
And for authority upon this point we refer the reader to 
our comment on ante page —. 

After the question as to the sufficiency of the answer has 
been settled the plaintiff should be ruled to reply, provided 

(58) 15 ind. 242. (59) $ Ind. 510. (60) 16 Ind. 444. (61) 19 Ind. 215, 


30 


THE BOARD OF COMMISSIONERS. 


tlie defendant has set forth in his answer material new mat¬ 
ter of defense. The reply is for the purpose of contradict¬ 
ing or avoiding the affirmative matter set up in the answer. 
Our Supreme Court, in the case of Wilson vs. The Madison, 
&c., R. R. Co., held that “ a reply is' bad which does not 
state facts sufficient to avoid the answer and show the plain¬ 
tiff is entitled to recover.” (62) 

It is provided by our code that u when the answer con¬ 
tains new matter the plaintiff* may reply thereto denying 
each allegation controverted by him, or any knowledge or 
information thereof sufficient to form a belief; and he may 
allege in plain and concise language, without repetition, any 
new matter not inconsistent with the complaint and consti¬ 
tuting a defense to the answer. The defendant may demur 
to a reply for any of the causes specified for demurring to 
a complaint.”(67) 

It will be readily seen that under this section that a reply 
is only necessary when new matter is set up in the an¬ 
swer. (63) And the plaintiff* may set up in his reply seve¬ 
ral independent defenses, and tender several issues, provided 
they are not inconsistent with his complaint.(64) An argu¬ 
mentative reply is good, provided it sets up facts inconsist¬ 
ent with the allegation in the answer.(65) A departure is 
“ always a confession of the answer without alleging suffi¬ 
cient facts to avoid it and make a new case,” hence a de¬ 
parture may be taken advantage of by demurrer.(66) There 
is something peculiar about the wording of section sixty- 
seven of the code set out above. It says “ that the defend¬ 
ant may demur to the reply for any of the causes specified 
for demurring to a complaint. If this section was con¬ 
strued literally the plaintiff would be compelled to reiterate 
the same matter in his reply that he had previously set up 
in his complaint. And our Supreme Court, in the case of 
McAvoy and another vs. Wright, in commenting upon this 
section, say: “ The statute expressly forbids a departure, 
but adds, very strangely, that the defendant may demur to 

(62) 18 Ind. 226. (63) 6 Ind. 309. (64) Zachnor vs. Beard, 8 Ind. 96. 

(65) 12 Ind. 89; 14 Ind. 529. (66) 25 Ind. 22. (67) 2 Res. by G. & II., p. 
94, sec. 67. 



TRIAL. 


81 


a reply for any of the causes specified for demurring to a 
complaint.’’ “This is simple nonsense, and if construed 
literally would make any reply that a sensible lawyer 
would be willing to prepare subject to demurrer. It can 
not be so construed, for it is beyond belief that the Legis¬ 
lature meant to require that a reply should repeat the com¬ 
plaint.” “ If it seeks new matter to avoid the answer and 
does not allege sufficient facts for the purpose, it must be 
held bad on demurrer, assigning that cause.”(68) “ All new 

matter in a reply is to be deemed controverted by the ad¬ 
verse party.” (69) 

After the questions on the pleadings have been settled 
by the board, and the issues are joined between the parties, 
the board should proceed at once with the trial of the cause, 
provided both parties are ready. (The statute provides 
“ that for good cause shown the court may continue the 
cause at any stage of the proceeding at the cost of the ap¬ 
plicant, to be paid as the court may direct.”(70) But we 
refer the reader to post page —, for continuance.) 

“ The party on whom rests the burthen of the issue may 
briefly state his case and the evidence by which he expects 
to sustain it.” “ The adverse party may then briefly state 
his defense and the evidence he expects to offer to support 
it.” The party on whom rests the burthen of the issue 
must first produce his evidence; the adverse party will then 
produce his evidence.(71) (As to the question of who has 
the burthen of the issue we refer the reader to our com¬ 
ment on the argument, post page —.) After the parties 
have made their statements to the board the sheriff should 
call the plaintiff’s witnesses, who will all stand up and take 
the following oath: You do solemnly swear that the evi¬ 
dence that you shall give in the cause now pending in which 
John Smith is plaintiff and Richard Roe is defendant, shall 
be the truth, the whole truth, and nothing but the truth so 
help you God.(72) (See post , page —, as to the competen¬ 
cy and examination of witnesses.) 

(68) 25 Ind. 22. (69) 2 Res. by G. & II., p. 100. (70) 2 Res. by G. & H., 
p. 198, sec. 323. (71) 2 Res. by G. & H., p. 199. (72) 2 Res. by G. & H., 
p. 167, sec. 236. 



32 


THE BOARD OP COMMISSIONERS- 


The plaintiff will then be permitted to introduce his evi¬ 
dence to the hoard. As soon as the plaintiff closes his ex¬ 
amination, the defendant's witnesses must be called by the 
sheriff and sworn. The defendant will then introduce his ev¬ 
idence. After the defendant has closed his evidence, if he has 
introduced any new matter not responsive to the evidence in¬ 
troduced by the plaintiff, the plaintiff may then be permitted 
to give further evidence in support of his claim; that will 
have a tendency to invalidate and overturn the affirmative ev¬ 
idence introduced by the defendant. After the evidence is 
closed the parties may submit the cause without argument 
to the board. But if they wish to argue the same, the 
provisions of the law must be followed. The statute pro¬ 
vides that “ In the argument the party having the burthen 
of the issue shall have the opening and closing; but shall 
disclose in the opening all the points relied on in the cause, 
and if in closing he refers to any new point or fact not dis¬ 
closed in the opening, the adverse party shall have the 
right of replying thereto, which reply shall close the argu¬ 
ment in the case."(73) The issue is “a certain and mate¬ 
rial point deduced by the pleadings of the parties, which is 
affirmed on one side and denied on the other.”(74) It is 
one of the rules governing the production of evidence, 
that “ the burthen of proving a proposition or issue, lies on 
the party holding the affirmative." This means that he 
who asserts a proposition to be true in his pleadings, must, 
in order for it to avail him anything on the trial, establish 
it by the evidence. Under this rule, if all the allegations 
set up by a party were denied by his adversary, the party 
who affirmed a proposition would be compelled to establish 
it by his evidences. But it sometimes happens that a party 
has had a good cause of action against another, but has by 
some means lost his right of action. To illustrate, suppose 
A is indebted to B by note to the amount of one hundred 
dollars; A pays the note in full, but B fails to surrender 
the same to A, or indorse the payment ofi the note; B 
afterward sues A on the note; A comes in and by his plea 


( 73 ) 2 Res. by G. & H. p. 202, sec. 326. (74) Stephens on Fleading, pp. 23,24. 



TRIAL. 


33 


admits the execution of the note, but alleges that on a cer¬ 
tain day he paid the same in full. The execution of the 
note being admitted, the burthen of the issue would be on 
the defendant A, and he would be entitled to open and 
close the argument. In the case of Bowen vs. Spears et ah, 
our Supreme Court, in commenting on this section of our 
statute, says, “We understand it to mean that where there 
are several issues, and the plaintiff is required to prove any 
one of them before he is entitled to a verdict, he is to 
begin. This rule we recognize as correct. The fact that 
the plaintiff, in addition to their denial of the set-off, had 
replied affimatively thereto, setting up new matter, cannot 
change the burthen, because, until the defendant had 
proved a set-off*, the plaintiff could not be called upon to 
prove their special replication.”(75) But let us illustrate 
still further: Suppose that John Smith files his written 
statement with the board of commissioners to contest the 
election of Richard Roe to the office of commissioner, and 
alleges that at said election there were cast for the. said 
Richard fifteen hundred votes, and that he received four¬ 
teen hundred. But he further alleges that one hundred 
and fifty of the votes that were cast for the said Richard, 
were cast by persons who were not entitled to a vote. The 
defendant Roe comes iuto court and admits that the facts 
set up in Smith’s complaint are true, but alleges by way of 
avoidance, that there were cast for the plaintiff Smith for 
said office, at said election, one hundred and seventy-five 
illegal votes; this allegation is-denied by the plaintiff 
Smith; this would shift the issue from Smith to Roe, and 
the defendant or contestee would have the right to open 
and close the argument.(76) If the general denial is 
pleaded in connection with a plea of confession and avoid¬ 
ance, the plaintiff should always be permitted to open and 
close the argument. The board may, if they wish, refuse 
to hear any argument at all; and they may limit the argu¬ 
ment to any length of time they please.(77) 

(75) 20 Ind. 146, 17 Ind. 612, id. 183, id. 396, 20 Ind. 492, 27 Ind. 308, 26 
Ind. 27. (76) 10 Ind. 253, 2 Black. 320, 9 Ind. 189, 4 Ind. 531. (77) 4 

Ind. 84, 5 Ind. 39, 9 Ind. 587, id. 541. 



84 


THE BOARD OF COMMISSIONERS. 


Where there are more than two attorneys in a case who 
wish to argue the cause, the general rule is to give each 
party a certain specified time and let them subdivide it to 
suit their own convenience. But if an attorney is to be 
limited in his argument, he should be notified of that fact 
before he commences the same, otherwise he might be 
greatly embarrassed in presenting his case to the board. 
The board acts as a presiding officer on the trial, and they 
should, therefore, exercise a kind of supervisory power, and 
should confine the argument of counsel to the points at is¬ 
sue, and restrain them from indulging in personalities and 
from impertinent topics.(78) After the board has heard the 
evidence and argument of counsel they must render their 
verdict, and enter the same of record. The record should 
show the finding of the board and give a general history 
of the case. It may be in the following form: 

John Smith vs . Richard Roe. 

Special Session of the Board of Commissioners of - County: 

Comes now the parties in person, and by their attorneys, 
and submits this cause to the board. And after hearing 
the evidence and argument of counsel the board finds that 

at the October election, in the year 1870, in-county. 

the contestor, John Smith, received one thousand legal votes 

for commissioner from the third district of-— county, 

and that the contestee, Richard Roe, received one thousand 
and twenty-five legal votes at said election for said office. 
The board therefore finds that the said Richard Roe was, 
at said election, duly elected commissioner from the third 
district of said county by the qualified voters of said county, 
and that he is now entitled to his commission as such com¬ 
missioner. And it is ordered that the auditor of this county 
certify the finding of this board forthwith to the Clerk of 
the Circuit Court of this county, and that he issue a com¬ 
mission to the said Richard Roe as such commissioner ac¬ 
cording to law. And it is further adjudged that the con¬ 
testee recover of the contestor the cost in this behalf expen- 


(78) Read vs. The State, 2 Ind. 438. 


$ 





NOTES. 


35 


ded, amounting to seventy-five dollars, and the auditor of 
this county issue a fee bill for the collection of the same 
after the expiration of twenty days. 


This 


■ day of 


1870. 


S. 

B. 

R. 


Commissioners.(7 0) 


If the finding is for the contestor let the record show 
that fact and the auditor certify the same to the Clerk of 
the Circuit Court. 

As soon as the clerk is notified according to law of the 
finding of the board, he must issue a commission to the 
successful party. It is true that the defeated party has ten 
days to appeal from the judgment of the board to the Cir¬ 
cuit Court. But if the appeal is granted after the commis¬ 
sion is issued it will have the effect of annuling the com¬ 
mission until the question is finally adjudicated.(80) On 
receiving the commission the successful party must qualify 
according to law. See ante, p. —. 


( 79 ) 1 Res. by G. & H., p. 319 , sec. 19 . 

( 80 ) 1 Res. by G. & H., p. 319 , sec. 20 ; 30 Ind. 266 . 


Notes on Contested Election. —(27 Ind. p. 191 .) 

Wheat vs. Ragsdale. 

APPEAL from Johnson Circuit Court. 

Elliott, J.—The appellant and appellee were opposing candidates for the 
office of Treasurer of Johnson county, at the annual election in October, 1864 . 
The Board of County Canvassers declared Wheat elect to said office by a * 
majority of one hundred and seventy-nine votes, and therefore Ragsdale insti¬ 
tuted these proceedings before the Board of Commissioners against Wheat to ■ 
contest said election. Within ten days after Wheat was declared elect, Rags 
dale filed with the auditor of said county a written statement specifying the 
ground of contest, verified by affidavit sworn to before said auditor. The 
specifications were stated as follows. First, for malconduct of William McCas- 
lin, inspector of election precinct in the township of Franklin in said county, 
in this, to-wit: that the said William McCaslin, in violation of his duty as such, 
inspector, corruptly, unlawfully and fraudulently took out of the box in which 
the ballots at said election were deposited, which was in his custody, and de¬ 
stroyed two hundred legal tickets or ballots, deposited by legal electors at said 
election, and before said ballots were counted, on which was the name of the 

4 






36 


THE BOARD OF COMMISSIONERS. 


contestor as a candidate for said office of Treasurer of Johnson county, and put 
in said box in lieu thereof two hundred and sixteen ballots, or tickets, on 
which was the name of the said Melville Wheat, contestee as aforesaid for said 
office of Treasurer; and further, that the said William McCaslin, trustee and 
inspector as aforesaid, having possession of said ballot-box, and before the bal¬ 
lots therein had been counted, negligently left said box so exposed that some 
person or persons to the contestor unknown, corruptly, unlawfully and fraudu¬ 
lently took out of said ballot-box and destroyed two hundred legal ballots or 
tickets on which the name of the said contestor was placed as a candidate for 
the office of treasurer as aforesaid, and put in said ballot-box in lieu thereof, 
two hundred and sixteen tickets, or ballots, on which was the name of the said 
Melville Wheat, as a candidate for the said office of Treasurer of Johnson 
county. Second. And for further cause of contest herein the contestor states 
that at said election, held at the usual place of holding elections in said county, 
as aforesaid, there was a large number of illegal votes or ballots cast for the said 
^contestee, and counted for him by the board of election aforesaid, to-wit: two 
hundred legal tickets, or ballots, having on them the name of the contestor for 
the office of treasurer of Johnson county, were fraudulently, corruptly and un¬ 
lawfully taken out of the ballot-box in which were deposited the ballots for the 
township of Franklin, and destroyed by some person or persons to the contestor 
unknown, and two hundred and sixteen illegal ballots, or tickets, were placed 
in said box in lieu of those taken out, having on them the name of Melville 
Wheat for treasurer as aforesaid. Fifty illegal votes, or ballots, were permitted to 
be deposited at the election aforesaid, in the ballot-box then used for the pur¬ 
poses of said election in the township of Blue River, by persons unknown at 
this time to the contestor, who were not then twenty-cne years of age, and by 
other persons who did not reside in said township. Twenty illegal votes, or 
ballots, were permitted to be deposited, at the election aforesaid, in the ballot- 
box, then and there used for the purposes of said election, in the township of 
Clark, by persons whose names are unknown at this time to the contestor, who 
were then under the age of twenty-one years, and by others-who did not reside 
in said township. On all the above named illegal votes, or ballots, the name of 
Melville Wheat, the contestee, was placed as candidate for the office of Treas¬ 
urer aforesaid, and all said votes were counted by the said election boards for 
the said Melville Wheat. He states that there were other illegal votes or bal¬ 
lots cast at said election in other townships of said county, having on them the 
name of the said contestee for Treasurer as aforesaid, and which were counted 
for him, but the number thereof, and the names of the persons who deposited 
them, are not known to the contestor. 

Wheat had been duly notified of the pendency of the proceedings, appeared 
before the commissioners and filed a written motion to dismiss the cause for the 
following reasons, viz: 

1. Because the complaint did not state facts sufficient to constitute a cause 
of contest. 

2 . Because the averments in the complaint were indifferent, uncertain and 
contradictory. 

3 . Because the statement of the contestor was not verified by sufficient affi¬ 
davit. 


NOTES. 


37 


This motion was overruled, and he then moved that a certain portion of the 
statement of the cause of contest be stricken out for the reason, as to some of 
them, that they were indefinite and uncertain in their averments, and as to oth¬ 
ers, in which illegal votes were alleged to have been given for the defendant, 
because it was not averred how many such illegal votes were given, who gave 
the same, nor in what the lack of qualification in such voters consisted, nor any 
member of the board of judges or canvassers at any precinct where the same 
were deposited was guilty of any malconduct, whatever, and because the names 
of the persons who cast such illegal votes were not given. 

This motion was also overruled, and the defendant then demurred to each 
cause of contest. The demurrers were overruled, and he then moved the court 
that the plaintiff be required to furnish the names of the persons who deposited 
the illegal votes, as in his statement alleged. This motion was sustained, and in 
obedience to this ruling the plaintiff filed a list containing the names of forty- 
eight persons alleged to have voted at this election in Franklin township, in said 
county, most of whom were alleged to be non-residents of the township, and the 
others, minors under twenty-one years of age; and also the names of three per¬ 
sons alleged to have voted at said election in Clark township, in said county, 
but who were not residents thereof. 

The defendant answered in four paragraphs. The first was the general de¬ 
nial ; the second, third and fourth alleged that illegal votes were given in the 
several townships of said county for the plaintiff, stating the number of such ille¬ 
gal votes by persons under twenty-one years of age, and by persons who were 
not residents of the township in which they voted, and by other persons who had 
not resided in this State six months next preceding the time of said election; and 
by others of foreign birth, who had not declared their intention to become citi¬ 
zens of the United States; and by other persons of foreign birth, who had not 
resided in the United States for one year before said election. 

The plaintiff replied in denial of the said second, third and fourth paragraphs 
of the answer. 

The contest was tried by the Board of Commissioners of the county, who found 
that at said election Ragsdale received 1,731 votes for said office of Treasurer, and 
that said Wheat only received 1,571 votes, and that Ragsdale was, therefore, duly 
elected to said office, and judgment was rendered accordingly. Wheat appealed 
to the Circuit Court. In the latter Court W T heat renewed his motion to dismiss 
the cause for the same reasons substantially as those filed before the commission¬ 
ers. The motion was overruled and he excepted. He then moved the Court to 
strike out each separate allegation of the statement of the grounds of contest: 
1st. Because the statement of the contestor is not verified by sufficient affidavit. 
2d. Because said statement does not state facts sufficient to constitute a cause of 
contest. 3d. Because the averments in said statement are indefinite, uncertain 
and contradictory. During the pendency of this motion, the plaintiff, over the 
defendant’s objection by leave of the Court, filed a supplemental statement 
making more specific the cause of contest, to which the defendant excepted. 
The statement consisted of the names of persons who are alleged to have voted 
illegally for the defendant at said election in Franklin and Clark township, they 
being either under twenty-one years of age, or non-residents of the township in 
which they voted, and is in substance the same as that filed before, and by the 


38 


TIIE BOARD OF COMMISSIONERS. 


order of the commissioners, at the instance and on the motion of the defendant, 
except that it was sworn to by the plaintiff in open Court. The defendant then 
renewed his demurrer to the plaintiff’s statement of the cause of 1 contest, and to 
each cause separately, which the court overruled and the defendant excepted. 
The answer of the defendant was filed, and on the plaintiff ’s motion he was 
ordered to make the second third and fourth paragraphs of the answer, and on his 
declining to do so, it was thereupon ordered by the court, that no evidence should 
be heard in relation to the said second, third and fourth paragraphs of the answer, 
to which ruling the defendant excepted. By agreement of parties the cause was 
submitted to the Court for trial without the intervention of a jury. The Court 
found that Ragsdale was legally elected to the office of Treasurer by a majority 
of thirty-eight votes, he having received 1,638 votes, and Wheat, the defendant, 
1,600 votes. Motion for a new trial overruled, and judgment. Wheat appeals. 
Several questions are presented by the appellant as grounds for the reversal of 
the finding and judgment of the Circuit Court, which will be considered in the 
order in which they dre named in the appellant’s brief. The first objection pre¬ 
sented is, that the county Auditor was not authorized by law to administer the 
oath to Ragsdale, the contestor, by which his written statement of the grounds 
of contest was verified; that as the Auditor had no power to administer the oath, 
the verification was void, and that the court therefore erred in overruling the de¬ 
fendant’s motion to dismiss the proceedings. 

The statute requires that the statement of the grounds of contest in such 
cases shall be verified by the affidavit of the contestor. 1 G. & H. sec, 
16, p. 318. In Allen vs. May, 8 Blackf. 310, the statement of the cause of 
contest was sworn to before the Clerk of the Circuit Court, under the statute of 
1-843, an d it was held that the Clerk of the Circuit Court, he not acting as Clerk 
of the Board of County Commissioners, was not authorized to administer the oath 
in that behalf; that the statement was, therefore, insufficient for the want of a 
proper affidavit, and did not authorize either the J 3 oard of County Commissioners 
or the Circuit Court to take cognizance of the cause. Had the auditor of John¬ 
son county authority to swear Ragsdale to the affidavit attached to the statement 
of the cause of contest ? The statute requires that such contest shall be tried by 
the Board of County Commissioners, of which the County Auditor is ex-officio 
clerk. It also provides that when any elector shall choose to contest such elec¬ 
tion he shall file with the auditor of the proper county, within ten days after such 
person has been declared elected, a written statement, specifying the grounds of 
contest, verified by the affidavit of such elector. 1 G. & H., sec. 16, p. 318. 

Sec. 17. When such statement is filed with the auditor of the proper county 
he shall immediately give notice in writing to the Clerk of the Circuit Court that 
the election of such officer is contested, &c. Section eighteen requires the audi¬ 
tor upon filing of such statement with him to issue a notice to the Board of 
County Commissioners to meet at the Court House at a designated time, not less 
than ten days nor more than twenty days thereafter, to try such contest. It also 
makes it the duty of the auditor to issue a notice to the contestee to appear at the 
same time and place specified in the notice to the. commissioners. The eighth 
section of the act in relation to County Auditors (1 G. & H., p. 123,) provides 
that “ auditors and their deputies are authorized to administer oaths necessary in 
the performance of their duties; also the oath of office to the person who receives 
his certificate of appointment or election from such auditor, and oath relating to 


NOTES. 


39 


the duties of such office.” It is conceded by the appellant’s counsel in argument 
that the auditor, as the Clerk of the Board of County Commissioners, may ad¬ 
minister all oaths required in such cases during the pendency before that court, 
but it is argued that the duties of the auditor in such cases do not commence un¬ 
til after the statement of the grounds of contest verified by the affidavit of the 
contestor has been filed with the auditor, and therefore that the swearing of the 
contestor to such statement does not pertain to the duties of the auditor, nor is it 
necessary in the discharge of his duty that he should administer the oath. It 
must be conceded that the argument is at least plausible, and that the power of 
the auditor to administer the oath is not entirely free from doubt, but in lieu of 
the general policy of the State, that the clerk of the court in which any suit or 
proceeding is required by law to be instituted, is authorized to administer all oaths 
necessary therein both in its institution and during its progress, it seems to be but 
a fair and reasonable construction of the statute that the oath of verification of 
the contestor of his statement of the grounds of contest may be administered by 
the auditor as pertaining to and as being necessary and proper in the discharge 
of his duties. But it is insisted by the appellant that if the auditor was compe¬ 
tent to administer the oath still the affidavit was insufficient under the statute, and 
the proceedings for that reason have been dismissed. The affidavit reads thus: 

“William S. Ragsdale, the above named contestor and elector of Johnson 
county, Indiana, upon oath says, that the matter and facts set forth in the forego¬ 
ing complaint, so far as the same are stated on his own knowledge, are true, and 
so far as they are stated on information derived from others he believes them to 
be true. WILLIAM S. RAGSDALE.” 

It was duly sworn to before the auditor, whose jurat was properly attached. 
The objection urged to the affidavit is that neither it nor the statement of the 
grounds of contest show what particular matters are stated upon the personal 
knowledge of the affiant, and what on the information of others, and hence that 
the affidavit is uncertain, indefinite and evasive, and therefore insufficient 

We do not so understand the statement of the grounds of contest. Every ma¬ 
terial allegation in it ds stated directly and positively as upon the knowledge of 
the contestor. True, in one of the specifications he charges the inspector with 
fraudulently taking from the ballot-box .two hundred legal ballots with his name 
on them for treasurer, and putting into the ballot-box in their stead two hundred 
and sixteen illegal ballots with the name of Wheat on them for the same office. 
While in another specification he charges the inspector with carelessly and negli¬ 
gently leaving the ballot-box exposed so that some person or persons, to the con¬ 
testor unknown, fraudulently abstracted from it two hundred legal votes with his 
name upon them for treasurer, and put into said box two hundred and sixteen 
fraudulent ballots with the name of Wheat upon them for the same office; but 
both statements are made in direct and positive terms, without qualification, as 
upon his own knowledge, and not upon the information of others. It must be 
answered that the statement is directly verified by the affidavit. There being no 
qualification that any of the facts alleged were derived from information of others 
the latter and qualifying clause of the affidavit has no application, and properly 
should have been omitted. Kincade vs. Kipp et ah, I Duer 692; Pitkins vs. Boyd, 
4 (Green) Iowa R. 255. 

The next question presented by the appellant, and relied on for a reversal, re- 


THE BOARD OP COMMISSIONERS. 


40 

lates to the action of the court in permitting Ragsdale to file a supplemental state¬ 
ment of the grounds of contest. The amendment or supplemental thus filed, as 
before stated, related to the illegal votes alleged in the original statement to have 
been given for Wheat by persons under twenty-one years of age, and by non-resi¬ 
dents in the townships of Franklin and Clark, and consisted simply of the names 
of the persons so alleged tc^have voted illegally in those townships, and was in 
substance the same as the list filed before the commissioners at the instance of 
Wheat. The court permitted it to be filed pending the appellant’s motion to 
strike out those specifications for uncertainty. It is assumed by the appellant’s 
counsel that the specifications were insufficient because they did not contain the 
names of the persons who it was claimed therein had voted illegally. In this view 
we do not concur. The cause of contest contained in the specifications referred 
to comes within the fourth statutory cause, to-wit, on account of “ illegal votes,” 
and we think it was the right of the contestor to prove as many illegal votes as 
he could, under those specifications, in the township named, and that it was not 
necessary to state the names of the illegal voters in the statement of the ground 
of contest. The only effect the supplemental statement filed by the contestor 
could produce would be to limit his proof of illegal votes to the persons named, 
and the appellant could not, therefore, be injured by the action of the court in 
permitting it to be filed. We need not therefore determine the question of the 
right of the contestor to amend his statement by leave of court. 

For the reason stated above, we think the court erred in ordering that the ap¬ 
pellant should not be permitted to introduce any evidence under the second, third 
and fourth paragraphs of his answer. Indeed this order seems to be without au¬ 
thority to support it in practice. If the paragraphs were so defective as not to 
admit of any evidence under them, the demurrer to them should have been sus¬ 
tained, or they should have been stricken out, on motion, on the refusal of the 
appellant to make them more certain. 

A bill of exception purports to contain all the evidence given in the cause, 
and shows that during the trial the plaintiff offered in evidence the record of 
the trial before the Board of County Commissioners, to which the appellant 
objected, but the Court overruled the objection, and permitted the record to be 
given in evidence, which was accordingly done. This ruling was excepted to. 
The object of the evidence was to prove certain admissions by the appellant on 
the record on the trial of the cause before the commissioners. The statement in 
the record as to the admission of the appellant is as follows: “And the contestor, 
in discharging the motion entered against him, files a list of fifty illegal votes 
cast in the several townships at said October election, and the contestee for the 
use and purposes of this trial, concedes that such votes were minors and non¬ 
residents, as in said list set forth. And the said contestor now presents a list of 
312 names of men who have made affidavit that they voted for the contestor at 
said October election, and the said contestee, for the use and purpose of the trial, 
conceded that the said men did vote for the said contestor as alleged. And 
said contestor now files a list of forty-six names of men who voted for said con¬ 
testor as aforesaid.” After this evidence was admitted by the court, the appel¬ 
lant filed the affidavit of Overstreet and Hunter, in which it is' stated that on 
the trial of the cause before the Board of Commissioners they appeared as the 
attorneys of the contestee, and as such attorneys, during the investigation of the 
cause before the commissioners, for the purpose of avoiding a long, tedious and 


NOTES. 


41 


unavailing investigation of the said cause, before said commissioners, under the 
issue there made, they made the concessions contained in the transcript of said 
proceedings; that at the time said concessions were made, it was understood, 
intended and expected, by the said affiants and the other attorneys for said con- 
testee, that they were made to be taken and considered as evidence against said 
contestee, on the trial of said cause before said commissioners, for the purposes 
aforesaid, and not to be used against said contestee on the trial of said cause on ap¬ 
peal to the circuit or any other court, and that at the time the concessions were 
made, the attorneys for the contestor believed and understood the attorneys for 
the said contestee to be making them for the purpose aforesaid, and to be taken 
as evidence on the trial before the commissioners only, and not elsewhere, and that 
they were made by the said attorneys without any advice or direction from said 
contestee to make them. Upon this affidavit the contestee moved the court to 
reject said record as evidence, but the court overruled the motion, to which 
appellant excepted. It is clear to our mind that the court erred in permitting 
the record of these alleged admissions to be given in evidence. A party to a 
suit may bind himself by admissions of record of material facts involved in the 
case,.where such admissions are made for the purposes of the suit, but here the 
facts alleged were not admitted to be true in fact, but were simply conceded to 
be so for the purpose of the trial before the commissioners. 

The appellant’s majority in the county, as declared by the county canvassers, 
was only 179 votes. His majority in Franklin township, as returned by the 
township board, was 611, out of a total vote of 995, and if he intended to admit 
it to be true that he received fifty-eight illegel votes at that poll, as stated in the 
list filed by the contestor, thus reducing the whole number to 947; and if he in¬ 
tended further to admit that the contestor in fact received of the last number 
358, it would reduce his own vote in that township to 589, and .his majority 
there to 321 instead of 611, as returned by the township board, thus conceding 
the election of the contestor beyond controversy. With such an admission 
of facts staring him in the face, it would be the extreme of folly to contest the 
case further. But from the language of the concessions, as well as from all sur¬ 
rounding facts, it is clear that the appellant did not admit, and did not intend to 
admit as true, on a final trial, the matters so conceded before the commissioners. 
The concessions had served the purpose for which they were made, when the 
trial before the commissioners terminated, and they should not have been re¬ 
ceived as evidence against the appellants on the trial in the Circuit Court. The 
effect given by the court to these allegations, admissions of record, as will here¬ 
after appear, determined the case against the appellant. The finding of the 
court is in the form of a written opinion upon the questions of both law and 
fact involved in the case. The length to which this opinion has already 
grown forbids a statement of that opinion at length. A reference, however, to 
the final conclusion of the court upon the evidence seems to be necessary for 
the purpose of showing the effect given by the court to the alleged admission of 
the appellant on the trial before the Board of Commissioners. 

The court found that the whole number of votes returned by precincts in the 
county to the County Convassers for these parties respectively, was for WTieat, 
1,741, and for Ragsdale, 1,562; that of the whole number so returned the Board 
of Franklin Township returned for Wheat 803, and for Ragsdale 192; that only 


42 


THE BOARD OF COMMISSIONERS. 


982 votes were polled at said election in Franklin township, of which number it 
was proved that Ragsdale received 268, seventy-six more than was returned for 
him to the County Canvassers, which add to 1,562, the total number returned 
to the County Canvassers, made his total vote in the county 1,638. It was 
further found that Wheat could only have received 714 votes in Franklin town¬ 
ship, being eighty-nine less than the number returned for him from that township, 
which being deducted from the aggregate returned for him in the county, reduces 
it to 1,652. The finding of the court then proceeds: It is admitted of record 
that fifty-one illegal votes were cast for the contestee, the persons who cast said 
votes being minors and non-residents. 

The evidence also shows that one minor in Clark township, not on the admitted 
list, also voted for him, making fifty-two. This number the court also deducted 
from Wheat’s aggregate in the county, thus reducing it to 1,600, or thirty-eight 
less than the aggregate found in favor of Ragsdale. The fifty-one illegal votes 
here claimed to be admitted of record has reference to the list of that number 
filed by Ragsdale before the County Commissioners, forty-eight of whom were 
alleged to have voted in Franklin township and three in Clark, and in reference 
to which the appellant for the purpose of that trial conceded that the persons 
there named were minors and non-residents, as alleged in said suit. It may be 
remarked in reference to the concession made as to that list, that it can not be 
claimed to be an admission, as the court seems to have regarded it, that the per¬ 
sons named had voted in said township, or that they had voted at all, but only 
that they were minors and non-residents as alleged. If, then, the admission or 
concession of the facts stated, was even conclusive upon Wheat, it would not 
prove that fifty-one illegal votes were cast for him, but only that the persons named 
were minors and non-residents; and it would still require other evidence to prove 
that they voted for Wheat. The court found from the evidence that only two 
hundred and sixty-eight votes were given for Ragsdale in Franklin township, 
while it was conceded by the appellant before the commissioners that three hun¬ 
dred and fifty-eight persons had voted for Ragsdale at that poll. This was a con¬ 
cession of all that was necessary to enable the commissioners to credit Ragsdale 
with that number of votes, and if the concession of fifty-one illegal votes was 
conclusive upon Wheat it would certainly be equally conclusive as to the three 
hundred and fifty-eight votes for Ragsdale, and we are at a loss to perceive upon 
what principle the court held the one conclusion and disregarded the other. 

One other question remains to be noticed. The contestor introduced as a wit¬ 
ness on the trial one Charles A. Patterson, who testified that he was thirty-two 
years of age; that the time of the October election, in 1864, and for nine months 
or a year previous thereto, he lived in Franklin township, in said county of John¬ 
son, and voted in said township at said election. He was then asked to state for 
whom he voted for the office of treasurer of said county. The counsel of Wheat 
objected to the witness answering the question for the reasons— 

1. That the ballot of the witness was the best evidence. 

2. Because the ballot of witnesses had been put in evidence by the contestor. 

3. Because oral evidence is not admissible when recorded evidence is available. 

The court overruled the objection and permitted the witness to testify that he 

voted for Ragsdale for treasurer, to which ruling of the court the defendant’s 
counsel excepted. It was not claimed that the witness was not a legal voter of 
Franklin township. 


NOTES. 


13 


The evidence was directed to the first ground of contest specified in the con- 
testor’s statement, filed with the auditor, viz: That before the votes given at 
Franklin poll were counted out, two hundred legal votes cast for him were ab¬ 
stracted from the ballot box at said poll, and two hundred and sixteen ballots with 
the name of Wheat upon them for Treasurer, were fraudulently substituted for 
those abstracted. The contestor sought to prove that the alleged fraud was per¬ 
petrated, by evidence that in fact two hundred more ballots, with his name upon 
them for Treasurer, were deposited in said box by legal voters of the township, 
than were found therein when the ballots were counted out, and that more bal¬ 
lots were found in the box when counted, than were actually cast at said election 
in that township. In other words, he sought to prove the alleged fraud by cir¬ 
cumstantial evidence. This the appellant contends he could not do, because in 
the absence of direct evidence of the fraud, the ballots found in the box were 
the best evidence of how and for whom the electors voted. 

We cannot sanction this position. Direct and positive proof of the alleged 
fraud would in such cases be more satisfactory to the court, or jury, trying the 
case. Such frauds, however, are seldom in the presence of those who are not 
participants in them, and if only direct and positive evidence were admissible, 
few if any of them would be brought to light We are not aware of any reason 
why frauds upon ballot-boxes, and thereby upon candidates for offices to be filled, 
may not as well be established by circumstantial evidence as frauds of any 
other character. The rights of interested parties, the purity of the ballot-box, 
and of our popular elections alike requires in such cases the greater latitude of 
evidence consistent with the fixed and well established rules of law. 

The record before us discloses the fact that the ballots counted out at the 
Franklin poll were before the court, and if they were not, if the witness could 
identify his ticket, and it had not been destroyed, it would, when so identified, 
be the best evidence of the fact for whom he voted. We think, therefore, that 
the witness should have been asked if he could identify his ticket, and if he 
answered in the affirmative, search should have been made for it. If it could 
not be found, or if he could not identify it, then it would have been competent 
for him to state for whom he voted. We are aware that this course of exam¬ 
ination would not probably be of but little practical importance, as but few 
voters would likely be able to identify their ticket, but when insisted upon it 
would be the proper cause of examination, as being in conformity with the 
strict rules of evidence. 

The judgment is reversed with cost and the cause remanded for a new trial. 

The appellant filed with the county auditor, within ten days after the appellee 
had been declared elected sheriff of Gibson county, a statement specifying the 
ground of contest of said election, verified by his affidavit. 

On the hearing before the commissioners, a motion to dismiss the proceeding 
was sustained, and upon appeal to the circuit court, the appellee successfully 
renewed the motion. It is insisted in this court that the statement was not suffi¬ 
cient, because, while it disclosed the fact that the ground of contest was that the 
appellee had received illegal votes, it did not appear that the number of such 
illegal votes would, upon being taken from the total number of votes cast for the 
said appellee, “ reduce the number of his legal votes below the number given for 
some other person.*' i G & H. sec. 15, p. 318. 


44 


THE BOARD OF COMMISSIONERS. 


The averment is that the appellant received 1,719 votes, and that one Kirk- 
man received 1,716 votes. It is also alleged that said Kirkman is entitled to be 
declared elected to said office, and would have been but for fraudulent and illegal 
votes cast at said election for James M. Ragsdale, in this, to-wit: That divers 
persons whose names to the contestor are unknown, who were not qualified voters 
of said county, and not entitled to vote at said election for said office of sheriff, 
did, on the day of said election, in the townships of Parker, Whiteriver, Wash¬ 
ington, Wabash, Montgomery, Johnson, Barton and Columbia, cast illegal votes 
for the said James M. Ragsdale for the office of sheriff of said county. And the 
contestor further says, that had said illegal votes not been given for said James 
M. Ragsdale, the said Joseph J. Kirkman would have been duly elected sheriff of 
said county. We think the averment that Kirkman received 1,716 votes is in 
effect an allegation that he received that number of legal votes, it appearing that 
they were cast at a legal election, and received and counted as legal votes by the 
proper officers, and no question as to their legality being presented by the state¬ 
ment. As there were but three more votes counted for the appellee than were 
received by Kirkman, and it is averred that illegal votes were cast for the appel¬ 
lee in eight townships, it sufficiently appears that the illegal votes so received 
would, upon being taken from the apellee, have reduced the number of votes 
received below the number received by Kirkman. As this is the only ground 
urged by the appellee in support of the ruling of the court below, and as we 
think that ruling erroneous, the judgment will be reversed with cost, and the 
cause remanded with directions to overrule the motion to dismiss the proceedings. 
Nickols vs. Ragsdale, 28 Ind. 131. 

A general election fixed by law is not vitiated by a failure of the officer to 
make the publication required by law. Carson vs. McPhetridge, 15 Ind. 327. 
Where the person voted for for the office of clerk, recorder, or auditor is ineligi¬ 
ble by reason of having already served eight years in a period of twelve, the 
disability is one of which the voters are bound to take notice. Carson vs Mc¬ 
Phetridge, 15 Ind. 327. 

When the majority of the ballots at an election were for a person not 
eligible to the office under the constitution, it was held that the ballots for such 
ineligible person were ineffectual, and that the person receiving the greatest 
number of legal votes, though not a majority of ballots, was duly elected and 
entitled to the office. Gulick vs. New, 14 Ind. 93. 

The duty of the board of canvassers and the clerk in making out the state¬ 
ment of the votes given the person elected, &c., are ministerial. They are not 
to consider any question relative to the validity of the election held, but to cast 
up the votes given for each person, from the proper election documents, and to 
declare the person who upon the face of the documents appears to have received 
the highest number of votes given, duly elected to the office voted for. Brown 
vs. O’Brien, 2 Ind. 423. 

The statement of the cause of contesting the election of county auditor must, 
under the statute of forty-three, (1843) be verified by the affidavit of the person 
who contests the election, and such affidavit cannot be made before the clerk of 
the circuit court in vacation, he not acting as the clerk of the board of county 
commissioners. Allen vs. May, 8 Black. 310. And unless the affidavit has 
been sworn to before the proper officer, neither the commissioners nor the circuit 
court on appeal can proceed in the case. Id. 


AMENDMENT. 


45 


CHAPTER III. 


AMENDMENT. 

In the Commissioners Court a liberal rule as to amend¬ 
ments of pleading and process should be adopted. The 
code allows great latitude in this respect. And in a court 
of limited jurisdiction, where the evident object of its cre¬ 
ation was to simplify the practice so as to enable those who 
are not skilled in law to transact their own business with¬ 
out the expense of employing attorneys, a generous rule 
ought to be established. But in no case should the board 
step outside of the plain rules marked out by the statute to 
accommodate the parties litigant. The statute is their guide 
and it should be followed by them. The code provides “ If 
the court sustain a demurrer the plaintiff may amend by 
payment of the costs occasioned thereby. (d) 

Any variance between any pleading and a copy of a 
written instrument filed as to matter of description or legal 
effect, may be amended at any time as of course before judg¬ 
ment without causing a continuance.”(c) 

“ In the construction of a pleading for the purpose of 
determining its effect, its allegations shall be literally con¬ 
strued with a view to substantial justice between the par¬ 
ties ; but when the allegations of a pleading are so indefi¬ 
nite or uncertain that the precise nature of the charge or 
defense is not apparent, the court may require the pleading 
to be made definite and certain by amendment.”( 4 ) 

“ No variance between the allegation in the pleading and 
the proof is to be deemed material, unless it has actually 
misled the adverse party to his prejudice in maintaining his 
action or defense upon the merits. Whenever it is alleged 
that a party has been misled, that fact must be proved to 
the satisfaction of the court, and it must be shown in what 
respect he has been misled, and thereupon the court may 
order the pleading to be amended upon such terms as may 
be just.”(^7) 


( d) 2 Res. by G. & H., p. 81, s. 53. (<f) 2 Res. by G. & H., p. 104, s. 73. 

(4) 2 Res. by G. & H„ p. 112, s. 90. (g) 2 Res. by G. & H., p. 114, s. 94. 



46 


THE BOARD OF COMMTSSfONERS. 


“When the variance is not material, as provided in the 
last section, the court may direct the facts to be found ac¬ 
cording to the evidence, or may order an immediate amend¬ 
ment without costs.”(A) 

“ Any pleading may be amended by either party of course 
at any time before the pleading is answered. All other 
amendments shall be by leave of court. A party amend¬ 
ing shall pay the costs of leave to amend. When the trial 
•is not delayed by reason of the amendment no other costs 
shall be taxed. When the amendment causes a delay dur¬ 
ing any part of the term, or to another term, the party 
amending shall pay the costs of such delay. No cause shall 
be delayed by reason of the amendment, excepting only 
time to make up issues, but upon good cause shown by affi¬ 
davit of the party or his agent asking such delay.”(?) 

“ The affidavit shall show distinctly in what respect the 
party asking the delay has been prejudiced in his prepara¬ 
tion for trial by amendment. When the action is continued 
for such cause the party asking the delay shall file his plead¬ 
ing at such time as the court may direct.”(j) 

“ The court may at any time, in its discretion, and upon 
such terms as may be deemed proper for the furtherance 
of justice, direct the name of any party to be added or 
struck out; a mistake in the name, description or legal 
effect, or in any other respect to be corrected, any material 
allegation to be inserted, struck out, or modified, to con¬ 
form the pleadings to the facts proved when the amendment 
does not substantially change the claim or defense. The 
court may also, in its discretion, allow a party to file his 
pleading after the time limited therefor, &c.”(43) 

“ When the plaintiff is ignorant of the name of the de¬ 
fendant such defendant may be designated in any pleading 
or proceeding by any name, and when his true name is dis¬ 
covered the pleading or proceeding may be amended ac¬ 
cordingly either before or after the service of the sum¬ 
mons.”^) 

(h) 2 Res. by G. & H., p. 115, s. 95. (?) 2 Res. by G. & H., p. 117, s. 97. 

U) 2 Res - by G. & H., p. II8, s. 98. (43) Act of 1867, p. 100, sec. 99. (44) 2 

Res. by G. & H., p. 122, sec. 100. 


AMENDMENT. 


47 


“ All writs and other processes authorized by the provi¬ 
sions of this chapter (article), shall be issued by the clerk 
of the court, and, except summonses, sealed with the seal 
of such court, and shall be served and returned forthwith, 
unless the court or judge shall specify a particular time for 
any such return. And no writ or other process shall bo 
disregarded for any defect if enough is shown to notify the 
officer or person of the purport of the process. Amend¬ 
ments may be allowed, and temporary commitments when 
necessary.”(45) For further information on this question 
the reader is referred to our notes.(46) 


(45) 2 Res. by G. & H., p. 320, sec. 736. 

(46) A motion for leave to amend after the evidence has been heard, is ad¬ 
dressed to the discretion of the court, and when neither the evidence nor the 
proper amendment are in the record this court can not say that the court below 
has observed its discretion. Shaler and another vs. Burkara, 10 Ind. 227. 

The court may admit the parties to perfect their pleadings at any time upon the 
issues formed before the submission of the case to the jury, but it can not permit 
a party to amend so aS to present a new issue after the evidence and argument 
has been heard. Kesstetter vs. Raymond, 10 Ind. 199. 

The plaintiff in this case obtained leave to amend, and was ordered to file his 
amendment thirty days before the first day of the next term, but he filed it only 
ten days before that time. At that term upon rule granted, the defendant failed 
to plead to the amendment. Judgment for the plaintiff. No motion was made 
to strike the amendment from the files, nor was any exception taken. Held, as 
in our practice we have no rule day, no default could have been entered for fail¬ 
ing to file the amendment according to the order, and the court might permit it 
to be filed afterward, and regard the question of time as waived. Smith and 
others vs. Governor and others, 9 Ind. 304. The record contains a bill of ex¬ 
ceptions which shows that after the evidence was closed, the argument of coun¬ 
sel concluded, and before the jury retired, the plaintiff moved for leave to enter 
a nolle proseqiti as to William and John Akin, it having been proved that they 
were minors under the age of twenty-one, and no guardian to answer for them 
having been appointed by the court, which motion, though resisted was sustained, 
and the plaintiff was permitted to enter the nolle prosequi , and in accordance 
with such entry to amend his complaint. Was the plaintiff’s motion correctly 
sustained ? The code says “ The court may, at any time in its discretion, and 
upon such terms as may be deemed proper for the furtherance of justice, direct 
the name of any party to be added or struck out, * * * * when the amend¬ 
ment does not substantially change the claim or defense. * * * The motion 
to enter a nolle prosequi was, in effect, for leave to amend by striking out the 
names of the minor defendants, and in that view the provision to which we have x 
referred seems to be broad enough to sustain the ruling of the court. * * * 
And it is obvious that the phrase at any time , in the connection in which it stands 
in the provision, was intended, in authorizing the court in the exercise of its dis- 




48 


CONTINUANCE. 


cretion, to allow such amendments at any time before the jury retires. Trees vs. 
Eakin and others, 9 Ind. 554. 

An improper amendment may be set aside, on motion, in the same court in 
which it was allowed Young vs. The State Bank, 4 Ind. 301. 

A party may have the liberty granted him to amend his pleading. Ludlow vs. 
Kincaid, 1 Blackford 488. 

A party may have leave to amend his pleading after the jury is sworn and be¬ 
fore the cause is submitted, without placing on record the specific grounds on 
which his motion is based. Ostrander vs. Clark, 8 Ind. 211. 

When the pleadings are defective in form only they are deemed to be amended 
in the Supreme Court. 9 Ind. 233. 

Any defect in the process amendable below will be deemed to be amended in 
the Supreme Court. 9 Ind. 520. 

A failure to enter default in the court below, and on appeal the amendment 
will be regarded as made. 10 Ind. 227. 

An amendment to a complaint generally has relation to the time the complaint 
was filed; but this is not so when the amendment sets up a title not previously 
asserted involving a question upon the statute of limitations. 10 Ind. 183. 

The plaintiff has a right at any time before his complaint is answered to amend 
his pleadings and to file additional paragraphs. 24 Ind. 253. 

Section 53 of the code (2 G. & H. 81), which provides for the amendment of 
pleading after a demurrer has been sustained, seems not to be discretionary but 
imperative, and in the absence of sham or frivolous pleading a party should be 
allowed to amend. Ewing vs. Patterson, 35 Ind. 326. 

Where a plea in abatement had been stricken out for want of verification by 
affidavit, after the jury had been sworn to try the cause, but before any further 
steps had been taken; Held, that it was too late for the defendant to ask leave 
to supply the verification. Held, also, that it was not necessary to re-swear the 
jury to try the remaining issue. Wilson vs. Pool, 33 Ind. 443. 

CONTINUANCE. 

The board no doubt may postpone the trial of any cause 
on their own motion on account of sickness of themselves 
or family, and for other important matters. The parties 
may by agreement postpone the trial to some future day. 
But a continuance by agreement of parties will be subject 
to the discretion of the board. If the defendant in a con¬ 
tested election case has not been served with process at least 
ten days before the day set for the trial of the cause it should 
be continued for service of process, on the defendant’s mo¬ 
tion, at the plaintiff’s cost.(45) 

Section 323 of the code provides: “Any court for good 
cause shown may continue any action at any stage of the 


(45) 20 Ind. 486. 



CONTINUANCE, • 49 

proceeding at the cost of the applicant, to be paid as the 
court shall direct.”( 46 ) 

It will be noticed on reading the above section that it 
fixes no definite time when the motion for a continuance 
shall be made. But it provides that the court, for “good 
cause shown, may continue any action at any stage of the 
proceedings” 

The matter is left at the sound discretion of the court. 
The board therefore should, in considering a motion to con¬ 
tinue, take into consideration all the circumstances surround¬ 
ing the case. Our Supreme Court, in the case of Detro v. 
The State, in commenting on the causes for continuance, 
says: “ The motion for a continuance based upon affidavit 
of the party is addressed to the sound discretion of the 
court trying the cause, and the propriety of refusing it must 
depend to a great extent on the peculiar circumstances of 
each case. From the nature of the case the court trying, 
witnessing all the proceedings, and being from personal 
observation familiar with all the attendant circumstances, 
has the best opportunity of forming a correct opinion upon 
the case presented. The general principles relative to grant¬ 
ing of continuances are well and clearly defined, but of ne¬ 
cessity there is considerable latitude of discretion left to be 
exercised by the court. And if no general principle has 
been violated the presumption will be in favor of the action 
of the court. In so far as they are vested with discretion¬ 
ary powers they will be presumed to have been properly 
exercised until the contrary is shown.”( 48 ) 

The words for good cause , as used in section 323 , means 
something that will injure or prevent the party from having 
a fair trial. Hence, a party may have the trial postponed 
on account of sickness of themselves, some member of his 
family, or on account of the sickness of his principal attor¬ 
ney. But a continuance is seldom granted on account of 
the absence of an attorney.( 49 ) And under some circum¬ 
stances the death of a near relative has been held a good 
cause for continuance. But the most usual cause for a con- 

(46) 1 G. & H., p. 198. (48) 4 Ind. 200; 26 Ind. 30; 6 Blaclcf. 426. (49) 
19 Ind. 83. 



50 


THE BOARD OF COMMISSIONERS. 


tinuance is the absence of witnesses or material evidence. 
In order for a party to get a continuance on account of ab¬ 
sent witnesses lie must show by affidavit: 

1 . That the witness is competent to testify.( 50 ) 

2 . The materiality of the evidence expected to be ob¬ 
tained^!.) and the facts showing the materiality of the evi¬ 
dence must be stated.( 52 ) 

3 . “ That the witness is absent and where he resides and 
the probability of procuring his testimony within a reason¬ 
able time.(ol) And that his absence has not been procured 
by the act or connivance of the party, nor by others at his 
request, nor with his knowledge and consent, and what facts 
lie believes the witness will prove, and that he believes them 
to be true, and that he is unable to prove such facts by any 
other witness whose testimony can be as readily pro¬ 
cured. ^ (5 2 ) 

4 . “ That due diligence has been used to obtain the tes¬ 
timony, and the facts constituting diligence must be set 
out,( 53 ) or else an excuse for the lack of diligence must be 
shown. 55 ( 54 ) 

The following form for an affidavit for an absent witness 
may be used: 

STATE OF INDIANA, 1 ec! 

-County, / ss: 

Before the Board of Commissioners of - County . 

John Smith vs. Richard Roe. 

The defendant (or plaintiff, as the case may be,) in the 
above entitled cause being duly sworn, upon his oath, says 
that he can not safely go to trial at the present term of this 
(court) board owing to the absence of John Taylor a mate¬ 
rial and competent witness for this defendant in the above 

entitled cause. That the said John Taylor resides in- 

county, Indiana. That this defendant expects to prove by 
the said John Taylor that (here set out the matter expected 

(50) 16 Ind. 143; 7 Blackford 432. (51) Act of Reg. Sess. of 1865, p. 61. 

(52) 7 Ind. 160; 3 Blackf. 504.; 10 Ind. 261. (52) Acts of Reg. Sess. of 1863, 

p. 61; 12 Ind. 525. (53) 15 Ind. 257; 16 Ind. 313. (54) 17 Ind. 239. 





CONTINUANCE. 


51 


to be proved). That he believes said facts are true, and 
that he is unable to prove such facts by any other witness 
whose testimony can be as readily procured. That on the 

-day of-, 1870 , he caused a subpoena to be issued 

by the county auditor of said county to the sheriff thereof 
commanding him to subpoena the said John Taylor to ap¬ 
pear at this term of this court to testify on behalf of the 
defendant in this cause. A copy of said subpoena and the 
return of the sheriff thereon is attached hereto and made 
a part hereof, marked A. That the sheriff served said sub¬ 
poena on the said John Taylor on-clay of-, 187 —. 

And that he believes that if this cause is continued for 
twenty days that he can procure the testimony of the said 
John Taylor. That the absence of the said witness, John 
Taylor, has not been procured by the acts or connivance of 
this defendant, or by others at his instance or request, nor 
with his knowledge and consent. That he makes this affi¬ 
davit to procure justice and not for delay. 

RICHARD EOE. 

Subscribed and sworn to before me, this-day of- 

1871 . JOHH SHORT, Auditor. 

It is provided by sections ninety-seven and eight, of the 
code, that “no cause shall be delayed by reason of an 
amendment, except only the time to make up issues, but 
upon good cause shown by affidavit of the party, or his 
agent, asking such delay.”( 56 ) The affidavit shall show 
distinctly in what respect the party asking the delay has 
been prejudiced in his preparation for trial, by the amend¬ 
ment. (5 7 ) 

A continuance under these sections can only be granted 
on affidavit of the party, showing wherein he has been 
prejudiced in his preparation for trial. 

In the case of Kirkpatrick vs. Holman, our Supreme 
Court held, that where a plaintiff* sued the defendant on a 

(56) 2 G. & H. p. 117. The withdrawal by the plaintiff, of a demurrer to a 
plea in bar, and then taking issue on the plea by replication, entitles the defend¬ 
ant to a continuance. 4 Black. 387. (57) 2 G. & H. p. 118. 

5 




52 


THE BOARD OP COMMISSIONERS. 


written agreement for a stallion and a common account for 
price and value of horse sold and delivered by the plaintiff 
to the defendant, and aftewards the plaintiff amended his 
complaint, or rather filed a new and substituted complaint, 
the first paragraph of which was like the first paragraph of 
the original complaint; 2, set up an arbitration and award; 
3 , fraud in book account, that the court was right in grant¬ 
ing the defendant a continuance on affidavit showing his 
surprise. (5 8) 

But a continuance should never be granted under these 
sections unless the party applying shows, by his affidavit, 
that the adverse party has raised a new issue by reason of 
the amendment, and that he is not prepared to meet it, on 
account of absent witnesses, or any other fact. 

The court may continue a cause for the purpose of taking 
depositions, when they may think that it is necessary to 
determirwc the rights of the parties.( 58 ) 

When an application is made for the continuance of a 
cause on account of the absence of a witness, if the ad¬ 
verse party will admit that the witness will testify to said 
facts as true, the cause should not be continued.( 59 ) And 
if the motion is made on account of the absence of other 
evidence, if the other party will consent that on the trial 
the facts shall be taken as true, the cause cannot be con¬ 
tinued.^) 

Great care should always be taken to get all the statu¬ 
tory requisites and essential matter in an affidavit for a 
continuance, because they cannot be amended like other 
insufficient pleadings.( 59 ) The suppression of a deposition 
is generally a good cause for continuance.( 60 ) 

In all contested election cases the board can only con¬ 
tinue the case for twenty days at a time.( 61 ) 

COSTS. 

When an application is made for a continuance on ac- 

(58) 25 Ind. 293; 24 Ind. 253; 9 Ind. 273. (58) 2 G. & H. p. 175? sec. 

249. (59) Act Reg. Session 1865, 62. (59) Pence vs. Christman, 15 Ind. 258; 

Derkill vs. The State, 7 Ind. 338; 13 Ind. 49. (60) 10 Ind. 125. (61) 1G.& 

H. p. 319, sec. 19. 



EVIDENCE. 


53 


count of absent witnesses or absent evidence, and granted, 
the cost is taxed to the applicant. 

Where an application is made on account of surprise, 
cost is always taxed to the party whose act produces the 
surprise. 

Continuances of the court costs is taxed to no one, but 
abides the result of the suit. The court has considerable 
latitude in the taxing of costs in continuances. 

At common law many persons were held incompetent to 
testify. All parties to the suit, and all persons whose pe¬ 
cuniary interests were directly involved in the issue, were 
not permitted to testify. Persons defective in understand¬ 
ing, and all persons insensible to the obligation of an oath, 
were excluded as witnesses. Husband and wife were pro¬ 
hibited at common law from testifying for or against each 
other, in both civil and criminal cases; and they could not 
disclose any communications, made to each other during the 
marriage relation, whether called as witnesses “during that 

Notes on Continuances. —An application for a continuance cannot be re¬ 
peated upon a second affidavit upon the same facts stated in the first. 12 Ind. 
407; 13 Ind. 46; 14 Ind. 39. 

The continuance of a cause may be set aside at the term at which it was 
granted, and the parties ordered to go to trial, if the court is satisfied that no in¬ 
justice will be done to either party. 9 Ind. 480. 

A continuance to obtain testimony is rightly refused when the facts sought to 
be proved are unimportant. 10 Ind. 40. The evidence proposed to be procured 
must be material. 12 Ind. 548; 14 Ind. 1; 11 Ind. 358. 

It is material to impeach the character of the witness of the opposite party. 
5 Black. 583. 

If the absent witness is disinterested, the continuance will be granted, though 
there are interested winesses present, having a knowledge of the same fact. 
5 Ind. 274; 24 Ind. 46. 

Cost resulting from a continuance on account of the absence of a witness, 
should be taxed to the party to whom the continuance is granted. 23 Ind. 466. 

Where the complaint is amended during term time, the defendant, upon 
proper affidavit of surprise, may be allowed a continance till next term. 25 ind. 
293; 24 Ind. 253. 

An application for a continuance to obtain absent testimony should show the 
exercise of reasonable diligence to obtain it before.. 22 Ind. 236; 27 Ind. 108; 
17 Ind. 239; 30 Ind. 39*5 ; 29 Ind. 508. 

An affidavit for a continuance in which the affiant cannot state the name of the 
witnesses he wants, nor where they reside or can be found, is insufficient. 
21 Ind. 236. 



54 


THE BOARD OF COMMISSIONERS. 


relation or afterwards.”(GO) Children under fourteen years 
of age, at common law, were presumed to be incompetent 
to testify. But this presumption might be overturned by 
evidence. And to test their competency or incompetencv, 
the court before whom the trial was had was required to 
interrogate the witnesses, and if, on examination they 
were found to have sufficient natural sense and intelligence 
and to have been so instructed as to comprehend the nature 
and effect of an oath, they were permitted to testify, what¬ 
ever their ages might be.( 62 ) But if on examination the 
witness was found to be ignorant of the nature and obliga¬ 
tion of an oath, the court could continue the cause until 
they could be instructed in reference to the same.( 63 ) 
Communication between clients and attorneys were also 
excluded. And this rule was so strictly adhered to that an 
attorney could not be compelled to disclose any communi¬ 
cation received from his client, nor be compelled to surren¬ 
der up any paper, or document, received from him, that 
was connected in any way with the business between them. 
But the common law made no distinction on account of race 
or color, and under its provisions any person of sufficient 
intelligence to testify was a competent witness, unless he 
came under some of the exceptions before enumerated. It 
is provided by the act approved May 31 , 1852 , section 1, 
subdivision 4 , that the law governing this State shall be 
“The common law of England and the statutes of the 
British Parliament made in aid thereof, prior to the fourth 
year of the reign of James the first, (except the second 
section of the sixth chapter of forty-third Elizabeth, the 
eighth chapter of thirteenth Elizabeth, and the ninth chap¬ 
ter of thirty-seventh Henry the eighth) which are of a 
general nature, not local to that kingdom, and not incon¬ 
sistent with the first second and third specifications of this 
act.” ( 15 ) 

Thus we see that by the expressed action of our legisla¬ 
ture the rules of the common law are in force in this State. 


(6o) 8 Ind. 180; 13 Ind. 253. (62) 1 Greenleaf on Ev. secs. 337, 338. 

(63) 1 Greenleaf on Ev. sec. 367. (15) 1 G. & H. p. 415, sec. 4. 



EnDJEHJB. 


55 


And unless its provisions in reference to witnesses have been 
abrogated by a subsequent act of our legislature it is still 
the law. The act approved March 11,1867, provides that 
“every person of competent age may be a witness in any 
civil or criminal cause, or proceeding, and no person shall 
be disqualified as a witness, by reason of interest in the 
event of that or any other action, or because such person is 
a party in said action, or proceeding, other than criminal. 
Any person, party in a civil action may testify in his own 
behalf, or in behalf of any other party, or parties therein, 
and any one person, or party in a suit, may compel any 
other person or party therein, to testify under the same 
regulations as other witnesses may be compelled, and the 
interest in the suit of any witness shall be regarded only as 
to his or her credibility, and shall not affect his her compe¬ 
tency. Persons insane at the time of examination, chil¬ 
dren under ten years of age, and incapable of properly un¬ 
derstanding the facts about which they are examined, hus¬ 
band and wife as to matters for or against each other, or 
as to communications made to each other during marriage, 
except that the wife shall be a competent witness in case of 
prosecution against the husband for assault and battery 
upon the person of his wife, and except, also, that in suit 
by husband and wife jointly for an assault upon the wife, 
such wife shall be a competent witness to prove the assault 
and battery. Attorneys at law, as to confidential communica¬ 
tions from a client, or advice given to such client ; phys¬ 
icians, as to matters confided to them in the course of their 
profession; clergymen, concerning any confession made to 
them in the course of discipline enjoined by the church, shall 
not in any case be competent witnesses, unless by the con¬ 
sent of the party making such confidential cojnmunication. 
Provided, That in all suits where an executor, administrator 
or guardian is a party, neither party shall be allowed to testify 
as a witness, unless required by the opposite party, or by the 
court trying the cause, except in cases arising upon con¬ 
tracts made with executor, administrators or guardians of 
such estate, and in case where a party to a suit pending in 
any court in this State, whose deposition has been taken in 


56 


THE BOARD OF COMMISSIONERS. 


such suit and is on file in such court, dies, such suit is prose¬ 
cuted by or against the executor or administrator of such 
deceased party, the opposite party shall be allowed to testify 
as witnesses on the trial of the cause on all material points 
and matters of fact embraced in the deposition, and on no 
other facts, and such deposition may be read in evidence by 
and on behalf of the representatives of such deceased 
party. And provided further, that in all suits by or against 
him, founded on a contract with, or demand against an an¬ 
cestor, the object of which is to obtain title to, or posses¬ 
sion of land or other property of such ancestor, or to reach 
or to affect the same in any way, neither party shall be 
allowed to testify as a witness as to any matter which oc¬ 
curred prior to the death of such ancestor, unless required 
by the opposite party, or by the court trying the cause^- 
and the assignor of the plaintiff in any such suit where 
there has been an assignment of the cause of action, shall 
be deemed and held to be a party within this provision.” 
(16) 

This act substantially adopts the common law rule, except 
that it permits parties litigant, all parties at interest, to tes¬ 
tify in civil cases. And allows one party to make a wit¬ 
ness out of all other parties to the suit, either plaintiffs or 
defendants. It also fixes the age of competency at ten in¬ 
stead of fourteen years. And where a husband and wife 
are sued jointly concerning their joint property each can 
testify for himself or herself under this act.(17) 

THE EXAMINATION OF WITNESSES. 

After the board has settled the question as to the compe¬ 
tency, the sheriff must call the witnesses and the auditor 
must administer to them the oath given on ante , p. 31; and 
on motion of either party the court will order the witnesses 
separated. This is a matter, however, that is left entirely 
at the discretion of the court. But it is the duty of the 
court to make the order, if it thinks that it is essential to 
the discovery of the truth or that justice will be promoted 


(16) Acts of 1867, p. 225. (17) 29 Ind. 570. 



EXAMINATION OF WITNESSES. 


57 


thereby. And the board should seldom refuse to make the 
order for separation when requested.(69) If a witness re¬ 
mains in the house after an order of separation has been 
made the board may fine him for contempt, and may ex¬ 
clude his testimony; but the testimony of a witness in this 
country is seldom excluded for this reason. But parties to 
the suit who are intended as witnesses can not be excluded 
from the room.(70) 

After the witnesses have retired from the room the sher¬ 
iff will, at the request of the court, call the witnesses and 
they will be examined as called. The examination of a wit¬ 
ness by the party calling him is called the examination in 
chief. The cross-examination is that made by the other 
party. In the examination in chief, as a general rule, the 
party is not allowed to ask leading questions. A leading 
question is one that suggests the answer to the witness, or 
one that can be answered by yes or no.(71) To this rule 
there are however some exceptions. In the preliminary ex¬ 
amination, or what is more commonly called the introduc¬ 
tory part of the examination in chief, the witness may be 
asked leading questions. When an immaterial question 
must of necessity be asked, in order to get at a material one, 
then the question may be put in a leading form. And when 
the witness is not of the party’s own calling(72) he may be 
asked leading questions; or if he appears hostile to the party 
calling him, such questions can be asked. And when a wit¬ 
ness is called to contradict what a party said at a certain time, 
he may be asked the question directly, did he say so ? or 
was that said ? referring to the matter, instead of asking 
him what was said. (73) A witness can only testify to such 
facts as are within his own knowledge, but he should be 
allowed to refresh his memory by reference to memoran¬ 
dums or other writings that he has made, or which he knows 
to be genuine.(74) As a general rule the witness should be 
requested to state the facts portrayed by him in as clear, pre- 

(69) 1 Greenleaf’s Ev., pp. 504-5; McDonald, p. 120; 6 Blackf. 50; 2 Ind. 
435. (70) 26 Ind. 386. (71) 1 Greenleafs Ev., sec. 434; McDonald, p. 120. 

(72) 29 Ind. 198. (73) I Greenleaf, p. 508, sec. 335. (74) 4 Ind. 156; 5 Ind. 
133; 5 Wendle 30L 



58 


THE BOARD OF COMMISSIONERS. 


cise language as possible. But this rule does not require 
him to speak with that degree of certainty as to exclude all 
doubts in his mind. If his mind is strongly impressed with 
the facts but his recollection is not clear and certain, his 
evidence should be admitted.(75) As a general rule, a wit¬ 
ness can not give his opinion upon questions of fact. But 
there are exceptions to this rule. 

The opinion of any witness can be given as to the identity 
of a person or to one’s hand writing. And a witness not an 
expert, who knows facts personally, may give an opinion 
in matters requiring skill, stating also the facts on which he 
bases his opinion.(76) And where a person is skilled in a 
certain branch of science, when the point at issue involves 
questions of fact connected with that science, the opinion 
of the expert is admissible.(77) But one’s opinion as to a 
person’s legal or moral obligation, or how another would 
probably act if certain influences were brought to bear up¬ 
on him, can never be admitted. 

After a party has finished his examination in chief, the 
opposite party will then be permitted to cross-examine him. 
In cross-examinations leading questions may be put to the 
witness.(78) As a general rule the cross-examination must 
be confined to the subject matter of the examination in 
chief.(79) But as cross-examinations are only allowed for 
the purpose of getting the witness before the court or jury in 
his true light, great latitude should be allowed for the pur¬ 
pose of testing his memory, the purity of his principles, 
skill, accuracy and judgment, so as to enable the court or 
jury to judge of the weight that should be given to his 
testimony, and his feelings towards the parties; and all other 
questions of a kindred nature that are calculated to over¬ 
turn and destroy the coherency of his evidence, provided 
the same has been fabricated,(80) may be asked. No ques¬ 
tions collateral to the main issue can be asked for the pur¬ 
pose of impeaching or contradicting the witness. If new 

( 75 ) 4 Ind. 156; 5 Ind. 133; 5 Ind. 92; 23 Ind. 37. (76) 4 Blackf. 293; 
10 Ind. 120 and 551; 5 Blackf. 217; 30 Ind. 235. (77) 18 Ind. 329; 5 Blackf. 
217; 14Ind. 450; 12 Ind. 324. (78) 12Ind. 324. (79) 12 Ind*2565 29 Ind. 
454. (80) 5 Mett. 48; 7 Mett. (Mass.) 266. 



EXAMINATION OF WITNESSES. 


59 


facts arise upon the cross-examination tlie witness may be 
re-examined as to it by the party who called him, and he 
may be asked to explain any part of his cross-examination, 
or any apparent inconsistency between his direct and cross- 
examination. After the plaintiff has finished the examina¬ 
tion of his witnesses and the introduction of his evidence, 
the defendant will then be permitted to call and examine 
his witnesses; and in the introduction of his evidence he 
will be confined to the same rules that governed the plain¬ 
tiff in the examination of his witnesses; and they will be 
subject to cross-examination and re-examination like those 
of the plaintiff. 


IMPEACHMENT. 

A witness can be impeached in several ways: 

1. By showing that he has made former statements out 
of court different from one he has made under oath. But 
in order for you to do this you must lay what is called the 
foundation. This you can do by asking him the question 
if he did not state to A or B at a certain place (mentioning 
place and fixing the time that he should have made the 
statement), and if he answers that he did not, or that he 
don’t recollect, you can then show the statement.(81) But 
where a witness has been impeached by showing his state¬ 
ment out of court in conflict with those he has made on the 
trial, the opposite party may, for the purpose of upholding 
the character of his witness, introduce testimony to show 
that he has made statements out of court in harmony with 
those he has made on the trial.(82) And where testimony 
is introduced of a contradictory nature either or both par¬ 
ties may uphold their witnesses by showing their general 
character for truth and veracity in the neighborhood in 
which they live, is good.(83) 

2. And you may also impeach a witness by showing that 
his general reputation for truth and veracity in the neigh¬ 
borhood in which he lives is bad. But in your inquiries 

(8i) 8 Ind. 314; 5 Blackf. 217; 14 Ind. 139; 15 Ind. 173; 28 Ind. 285; 13 
Ind. 434; 2 G. & H., p. 172, at bottom. (82) 28 Ind. 285 j 29 Ind. 555; I 
Greenleaf s Evidence, sec. 469. 



60 


THE BOARD OF COMMISSIONERS. 


into his reputation among his neighbors you will be con¬ 
fined to that time, or the time of the examination, as a gen¬ 
eral rule. And this is based upon the principle of refor¬ 
mation. It is generally conceded by all that men may re¬ 
form ; therefore, a man may have had a bad character last 
year for truth and veracity but from some cause may have 
repented and reformed, and this year have established by 
his honest dealing and upright conduct a good reputation 
for truth and veracity among his neighbors. It will be seen 
at once, then, the importance of a strict adherence to this 
rule.(82) But to this rule there are some exceptions. Where 
a witness has just moved into a strange neighborhood and 
has not been there a sufficient length of time for the people 
to become acquainted with his character, or to establish a 
reputation, his reputation in the neighborhood where he 
last resided may be shown. But before tins can be done 
the party offering the impeaching evidence must show such 
a state of facts to exist before he will be permitted to intro¬ 
duce his evidence to that efiect.(83) There are some other 
exceptions, but the above we think will illustrate the rule. 

3. A witness may be impeached by showing what he said 
on a former trial. To do this you must ask him if he did 
not testify as a witness at -’s former trial. If he an¬ 

swers this affirmatively, you must then ask him if he did 

not state at that time that-, &c.; and if he answers no, 

you can then prove what he did say.(85) A party will not 
be permitted to impeach his own witness by “ evidence of 
bad character, unless it was indispensable that the party 
should produce him, or in case of manifested surprise, when 
the party shall have this right.” “ But he may in all cases 
contradict him by other evidence, and by showing that he 
has made statements different from his present testimo¬ 
ny.” (86) When a witness has been examined in chief and 
his statements are contradicted by other witnesses, he can 
not be recalled to repeat what he said on his former exami¬ 
nation.(87) A party may introduce his evidence in any 

(82) 1 Blackf. 1; 3 Ind. 70; 27 Ind. 381; 19 Wend. 190. (83) 27 Ind. 383; 26 
Ind, 163. (85) 8 Wendle595; 13 Ind. 34; 16 Ind. 238; Bicknell’s Civil Pr. 242. 
(86) 2 G. & H., p. 172, sec. 244 j 14 Ind. 589. (87) 27 Ind. 383; 26 Ind. 165. 





EXAMINATION OF WITNESSES. 


61 


way he pleases; but to do this he must show that it is rele¬ 
vant ;(88) and in the production of his evidence he should 
be held to the following rules: 

Rule 1. “ That the evidence must conform to the alle¬ 
gations and be confined to the point at issue.’* 

It becomes a matter of importance under this rule to 
know what the word issue means. An issue is formed when 
one party alleges that a certain fact is true and this is de¬ 
nied by the other; or it may be defined to be “ a single, cer¬ 
tain and material point, deduced by the pleading of the 
parties which is affirmed on one side and denied on the 
other.(83) Then if there is an affirmative allegation of 
material matter on one side and this is denied on the other 
this would raise a material issue. An immaterial issue 
should be disregarded by the court, and no proof should 
be introduced upon it by either party.(84) To illustrate— 
Suppose that A sues B on a covenant of warranty, and 
alleges that B sold him the land and warranted it to be 
clear, free and unincumbered, and that the same was not un¬ 
incumbered but that it was incumbered, and that B knew at 
the time of the conveyance that it was incumbered. B de¬ 
nies the allegations; the issue as to whether B knew that the 
land was incumbered or not would be an immaterial one, and 
if proof was offered upon this point it should be rejected. Ho 
evidence should be received on the trial of any cause which 
does not in some way establish some “ reasonable presump¬ 
tion or inference as to the principal facts or matters in dis- 
pute.(87) 

Rule 2. “ That it is sufficient if the substance only of 

the issue be proved.” 

Under this rule a party will recover if he succeeds in 
establishing by the preponderance of the evidence the sub¬ 
stance of the allegation set up in his pleading. To illus¬ 
trate—Suppose D sells G a horse, for which G promises to 
pay him one day after the sale one hundred dollars for said 
horse; G fails to pay for the horse at the time agreed upon 

(88) 4 Blackf. 174; 7 Ind. 140; 4 Ind. 275. (83) 1 Greenleaf,—, Bouvier’s 
Dictionary. (84) 1 Greenleaf, —. (87) 1 Greenleaf s Ev., sec. 52; 13 Ind. 
434. (88) 1 Greenleaf, sec. 50. 



62 


THE BOARD OF COMMISSIONERS. 


and D sues him for the value of the horse, and in his com¬ 
plaint he alleges that on the 25th day of December, 1870, 
he sold G a certain iron gray horse, in Vermillion county, 
Indiana, and that he was a good work horse, &c., for which 
G agreed to pay him one day after the sale one hundred 
dollars, &c.; G comes in and pleads the general denial. If 
D can show that he sold G the horse any time within six 
years, and he was to pay him one hundred dollars for him, 
this would entitle D to recover, because the substance of the 
issue is the sale and price of the horse. It is provided by 
section 95 of our statute that “ when a variance is not ma¬ 
terial * * * the court may direct the facts to be found ac¬ 
cording to the evidence, or may order an immediate amend¬ 
ment without costs.”(90) 

Rule 8. That the “ burden of proving a proposition or 
issue lies on the party holding the affirmative.” 

Under this rule he who alleges a certain statement as a 
fact must, if it is essential to his recovery, establish that 
allegation by the preponderance of the evidence. To illus¬ 
trate—Suppose that in a contested election case the plain¬ 
tiff was to allege that there was a certain amount of illegal 
votes cast at the election for the defendant, &c.; here the 
plaintiff would have to prove the allegation as alleged if it 
was denied. And if the defendant sets up affirmative mat¬ 
ter in his answer under this rule he must, if it is denied, 
establish it by the preponderance of the evidence, otherwise 
it will avail him nothing. This rule requires each party to 
establish by proof all the allegations of affirmative matter 
by them set up. And where the plaintiff grounds his right 
of action on a negative allegation, he must, as a general 
rule, prove that negative.(91) 

But to this rule there is an exception: Where the sub¬ 
ject matter of a negative allegation lies almost exclusively 
within the knowledge of the other party. In such case 
the negative averment will be taken as true, unless it is shown 
to be untrue by the other party. To illustrate, a party 
is indicted for selling liquor by the small without license ; 

(90) 2 G. & H., p. 115. (91) 28 Ind. 272; McDonald Treat. 127; 1 Green- 
leaf, Sec. 83. 



EXAMINATION OF WITNESSES. 


63 


and it is averred in the indictment that the defendant did 
sell to John Jones in less quantity than a quart at a time, 
to-wit: one gill of whiskey, he not then and there having 
first procured a license from the board of commissioners, 
&c., to sell and barter, &c. Under this averment the State, 
in order to make out her case, would only have to show 
that he sold the whisky as alleged, to Jones, and if the de¬ 
fendant, at the time of the sale, had license to sell, he must es¬ 
tablish this by his proof* (92) He, under such circumstances, 
is considered as holding the affirmative on that issue. 

Buie 4. The best evidence must be produced . This rule is 
adopted for preventing fraud, and for the purpose of having 
every act of the parties to stand before the court, or jury, 
in their true light and character. Experience has estab¬ 
lished the fact that men who are engaged in litigation are 
inclined to keep back all the evidence they think will injure 
their cause. /And so firmly is this principle interwoven 
into the jurisprudence of this country, that the party who 
attempts to establish the facts in his case by secondary 
evidence raises a presumption of fraud against himself.(96) 
To illustrate, A and B make an agreement and they re¬ 
duce that agreement to writing; A sues B on this agree¬ 
ment, and on the trial he attempts to show its contents by 
parol; this would raise a presumption of fraud against A, 
and the evidence would be excluded. 

In the case of Wheat vs. Bagsdale, our Supreme Court 
held that where a witness was called to prove that he cast 
a ballot for a certain person at an election, that if his ticket 
could be found and identified by him, that it would be the 
best evidence of that fact, and that until its absence was 
shown in the regular way that no other evidence should 
have been received in reference to that fact.(97) Questions 
which frequently arise under this rule lead into what is 
familiarly known as primary and secondary evidence. Pri¬ 
mary evidence means the first and the best evidence. It is 
that which affords the greatest certainty of facts men¬ 
tioned or set out in the pleadings. And until it is estab- 

(92) 28 Ind. 272; 1 Gfreenleaf, sec. 179. (96) 1 Greenleaf, sec. 82. (97) 27 
Ind. 191. 



64 


THE BOARD OF COMMISSIONERS. 


lished that primary evidence is out of the party’s power, 
he cannot introduce secondary evidence to establish his 
case. All contracts required to be in writing by the statute 
of fraud must be proved by documentary or written evi¬ 
dence.(98) But all rules governing the production of evi¬ 
dence are adopted for practical purposes in the administra¬ 
tion of justice, and they must be so applied as to promote 
the ends for which they were intended. Therefore the rule 
above laid down is subject to some exceptions; and one of 
these exceptions is for the purpose of accommodating the 
public. By reason of this exception a party may, on the 
trial of a cause, show by parol evidence that a person has 
notoriously acted as a public officer, and this will raise a 
presumption of his official character, without producing his 
appointment, or commission.(98) 

hearsax. 

On the trial neither party should be permitted to estab¬ 
lish the allegations in their pleadings by hearsay evidence. 
Hearsay evidence is that “ kind of evidence which does 
not derive its value solely to the credit to be given to the 
witness himself, but rests in part upon the veracity of some 
other person.” Suppose that A tells B that he was not a 
legal voter at the October election, 1870; B tells C that A 
had told him this fact; A is indicted for illegal voting; C 
would not be allowed to come in and testify that B told 
him that A said that he was not a legal voter at said elec¬ 
tion, because it would be hearsay.(99) But the court 
should be careful to discriminate between hearsay and other 
evidence, or else they may exclude legitimate evidence. A 
rule upon this point is this, that when the fact that a “ com¬ 
munication was made, and not its truth or falsity is the 
point at issue, any one who heard the words spoken may 
testify.(lOO) So when the feelings of an individual are the 
question at issue, the expressions of that individual, made 
at the time, are legitimate and proper evidence, and whether 
they were made to deceive and mislead others, is a question 

(98) 1 G. & H. p. 348. (98) 5 Black. 390; 1 Greenleaf, sec. 83. (99) 1 

Greenleaf Ev. sec. 99. (100) 1 Greenleaf, sec. 99. 


EVIDENCE. 


65 


for the jury or court trying the cause to determine. The 
facts of birth and marriage, descent and relationship, may 
be proved by hearsay evidence.(101) 

And when a transaction is introduced, the whole should 
be admitted; all the circumstances constituting what is 
called the res gesta , should be portrayed to the court. But 
in order to admit these facts, they must have been in some 
way so connected with the main transaction which is under 
consideration, as to show its character.(102) Where sev¬ 
eral persons have formed a conspiracy, after you have estab¬ 
lished this fact, the declarations of each member becomes a 
part of the res gesta , and can be given in evidence against 
the whole.(103) The act and declaration of each member 
of a partnership can he given in evidence against the firm. 
(104) The declaration of an agent, made at the time of 
the transaction, is considered a part of the res gesta , and 
can be given in evidence against the principal. But before 
you will be permitted to introduce the declarations of an 
agent in evidence, you must first establish the fact that he 
was an agent. (10 5) 

But there are several cases in which hearsay will be ad¬ 
mitted. 1. Where the facts to be proven relate to public 
and general interest. So facts in relation to ancient posses¬ 
sion, declarations against interest, what a deceased witness 
said on a former trial, and some others of a miscellaneous 
character.(106) 


ADMISSIONS. 

If a party to a suit admits certain facts to be true, and 
they are against him, they can always be given in evidence 
by his adversary. And when two or more have a joint 
interest in the matter in litigation, the admissions of one, 
in the absence of fraud, would be binding on all the parties 
in interest. But before declaration of a joint party can be 
received, the party offering the evidence must show that 

(ioi) i Greenleaf Ev. sect. 99. (102) 1 Greenleaf, sec. 108; 29 Ind. 249. 

(103) 18 Wend. 353. (104) 1 Greenleaf, sec. 112. (105) 13 Ind. 258; 3 Black. 
436; 5 Ind. 286, 289; 26 Ind. 165; 25 Ind. 31 ; id. 185; 2 Ind. 332; 7 Wend. 
281. (106) I Greenleaf, sec. 156; 14 Ind. 573; BecknelPs Ev. p. 161 ; 



66 


THE BOARD OF COMMISSIONERS. 


the parties were, at the time the declaration was made, hold¬ 
ing joint interest in the matter in dispute.(107) The ad¬ 
mission of the wife can be given in evidence against the 
husband, if at the time she made the admission she was 
acting as his agent.(108) 'Where one claims real or per¬ 
sonal property by title, the declaration of the grantor, 
while he was in possession of the same, in disparagement 
of his title, can be given in evidence against his immediate 
vendee, in a suit between the vendee and another.(109) 
Owing to the fact that persons are apt to misunderstand 
what another said about a particular transaction, or event, 
admissions should be received with great caution, and are 
generally considered the weakest kind of evidence.(llO) 
Parol evidence should never he received to vary the terms of a 
written agreement. Parol agreements made before or con¬ 
temporaneous with a written agreement, cannot be intro¬ 
duced to vary the terms of such agreement. The entire 
agreement is conclusively presumed to have been reduced 
to writing by them, and all former contracts and agreements 
are merged in the written contract.(Ill) It is the duty of 
the court to interpret every written instrument, to ascer¬ 
tain from the instrument itself what the parties intended, 
and to do this he must give each word its plain, ordinary 
and popular signification.(112) And to enable the court 
to arrive at a correct conclusion as to the meaning and in¬ 
tention of the parties, as expressed in the instrument, he 
can call to his aid all contemporaneous writing made be¬ 
tween the parties relating to the same subject. But it 
sometimes happens that instruments are so unskillfully 
drawn that it is almost impossible to interpret them cor¬ 
rectly, owing to certain ambiguous phrases which the par¬ 
ties have used. These ambiguities are of two kinds. Am¬ 
biguities latent and ambiguities patent. Ambiguities latent 


(107) 1 Greenleaf, s. 177. (108) 8 Black. 240; id 22 ; (109) 3 Ind. 471;! 
6 Ind. 152; 11 Ind. 347; 5 Ind. 444; 5 Black. 220; 6 Black. 439; 6 Ind. 152; 
18 Ind. 343. (no) 1 Greenleaf, s. 100. (in) 23 Ind. 212; 28 Ind. 502; 
Sind. 79; 7 Black. 432; 1 Black. 191; 5 Black. 18; id. 272; 6 Black. 183; 
4 Ind.377; 8 Ind.364; id. 417; 9 Lid. 572. (112) n Ind. 273; I4lnd.499 ; 
25 Ind. 256; 15 Ind. 59; 20 Ind. 3S9. 



EVIDENCE. 


67 - 


are something that appear certain from the instrument and 
without ambiguity, but are rendered uncertain by something 
arising outside of the instrument. To illustrate, suppose 
that John Smith dies and leaves a will, and in that will he 
gives to his niece, Maggy Smith, a certain piece of land, 
and it turns out that he has two nieces by that name; this 
would be an ambiguity latent, and in order to arrive at a 
correct conclusion upon the point as to who the testator in* 
tended, the court could call to its aid all the outside cir¬ 
cumstances and facts connected with the case.(113) Am¬ 
biguities patent are those that appear upon the instrument 
itself. If an instrument is gotten up so informal as to con¬ 
vey no idea of the intention of the parties, or so that it 
could not be understood, this would be an ambiguity pa¬ 
tent, and could not be explained by parol evidence.(114) 

On the trial of a cause there are some things that courts 
will take notice of without proof. They will take notice 
of the existence of nations; also, of the law of nations;, 
also of the seal of a notary public; also of the course of 
time and seasons, the days of weeks and months, seed time 
and harvest; also of the meaning of words in the English 
language; also the extent of the territory of this State and 
of the United States; also of the local divisions of the 
country into States, counties, cities and towns, but not of 
their precise boundaries, further than they may be de¬ 
scribed by a public statute. 

They will not take notice of the changes of the common 
law. They will take notice, without proof, of stated days 
of general political elections; also of the sitting of our 
our legislature and its usual course of business; also mat¬ 
ters of public history; also of the political constitution 
and form of their own government and its political agents. 
(108) 


(1T3) i Greenleaf; 29 Ind. 574. (114) 1 Greenleaf, s. 297. (108) 27 Ind. 
281; 5 Ind. 8; id\ 13; 1 Greenleaf, secs. 56,57,58; 27 Ind. 233; 13 Ind.235; 
8 Black. 508; 5 Ind. 8, 13; 16 Ind. 241; 15 Ind. 42; 13 Ind. 235; 4 Ind. 
516; 5 Ind. 77; 13 Wend. 311; 14 Wend. 507; 12 Ind. 102; 1 Ind. 24; 2 Ind. 
437; 12 Ind. 330. 

6 



68 


THE BOARD OF COMMISSIONERS. 


DEPOSITIONS—HOW TAKEN. 

But it sometimes happens that witnesses that parties liti¬ 
gant wish to establish certain facts by on the trial of a 
cause, are non-residents of this State, or residents of some 
county other than the one in which the suit is pending, or 
an adjoining county, or are sick, or are laboring under some 
other disability. In such case you must take their deposi¬ 
tions. The statute on taking depositions is as follows: 

Chapter 12 .— Depositions and Written Evidence. 

Sec. 245. Depositions of witnesses, taken within or with¬ 
out the State, may be taken according to the regulations 
hereinafter provided, before any judge, justice of the peace, 
notary public, mayor or recorder of a city, clerk of a court 
of record, or commissioner appointed by the court to take 
depositions. But depositions shall not be taken before any 
person being of kin to either party, or interested in the 
action. 

Sec. 246. A party wishing to take depositions, shall give 
notice to the adverse party, if there be only one person; if 
there be several, to any one of them who is a real party in 
interest, his agent or attorney. Such notice shall specify: 

First. The cause or matter in which the deposition is to 
be used. 

Second. The court or tribunal in which the trial is to 
be had. 

Third. The time and place of taking the deposition. 

Sec. 247. The adverse party shall be allowed a reason¬ 
able time to travel from his usual place of abode to the 
place of taking the deposition, by the ordinary route of 
travel, exclusive of the day of service, the day of taking 
the deposition, and intervening Sundays. If served on an 
attorney or agent, a reasonable time shall be allowed him 
to communicate the same to the party. 

Sec. 248. The notice may be served in the same manner 
and by any person authorized to serve a summons for a wit¬ 
ness. If neither the party nor his agent or attorney reside 
in this State, the notice may be filed in the clerk’s office, or 


DEPOSITIONS. 69 

published three weeks successively in the county in which 
the suit is pending. 

Sec. 249. In all actions the court may order the taking 
of depositions, whenever deemed necessary to determine 
the rights of the parties, or to expedite the trial of causes, 
and may, if necessary for that purpose, order a continuance 
until the next term. 

Sec. 250. In all actions depositions may be taken by 
either party in vacation, immediately after the service of 
the summons, without an order of court, and, in term time, 
by the agreement of the parties. They may be used on the 
trial of all issues in any action in the following cases: 

First. Where the witness does not reside in the county, 
or in a county adjoining the one in which the trial is to be 
held, or Is absent from the State. 

Second . When the deponent is so aged, infirm or sick as 
not to be able to attend the court, or other place of trial, or 
is dead. 

Third. When the depositions have been taken by the 
agreement of parties, or by the order of the court trying 
the cause. 

Fourth. When the deponent is a State or county officer, 
or a judge, or a practicing physician, or attorney at law, and 
the trial is to be had in any county in which the deponent 
does not reside. 

In either of the foregoing cases, the attendance of the 
witness can not be enforced. 

Sec. 251. A witness is not obliged to attend for exami¬ 
nation upon a deposition in any other county than that of 
his residence, but may consent to do so. 

Sec. 252. No deposition shall be read in evidence on the 
trial of a cause, if at that time the witness himself is pro¬ 
duced in court, unless the deposition has been taken by the 
agreement of the parties, or by the order of the court. 

Sec. 253. The officer taking the deposition shall have 
power to summon and compel the attendance of witnesses. 

Sec. 254 . The provisions of the last section shall extend 
to all officers and commissioners authorized to take deposi- 


70 


THE BOARD OF COMMISSIONERS. 


tions in this State, to be read in the courts of other States 
or countries. 

Sec. 255. The deponent shall be first sworn by the offi¬ 
cer to testify to the truth, the whole truth, and nothing but 
the truth, relating to the cause or matter for which the dep¬ 
osition is to be taken; and he shall then be examined by 
the party producing him, and then by the adverse party* 
and by the officer or parties afterwards, if they see cause. 

Sec. 256. The deposition shall be written down by the 
officer, or by the deponent, or by some disinterested person, 
in the presence, and under the direction of the officer, and 
after the same has been carefully read to or by the depo¬ 
nent, it shall be subscribed by him. 

Sec. 257. The officer shall annex a certificate to the dep- 
osition, stating the following facts: 

First. That the deponent was sworn according to law. 

Second. By whom the deposition was written; and if 
written by the deponent, or some disinterested person, that 
it was written in the presence and under the direction of 
the officer. 

Third . Whether or not the adverse party attended. 

Fourth. The time and place of taking the deposition, and 
the hours between which the same was taken; and the offi¬ 
cer shall sign and attest the certificate, and seal the same, 
if he have a seal of office. 

Sec. 258 . The officer taking the deposition shall seal up 
the same in a sufficient paper envelope, and direct the same 
to the clerk of the court in which the action is pending, 
indorsing on the envelope the names of the parties and of 
the witnesses whose depositions are inclosed. 

Sec. 259. When a deposition is offered to be read in 
evidence, it must appear to the satisfaction of the court that 
the cause for taking and reading it still exists. 

Sec. 260. When a deposition is to be taken within the 
State, no commission shall be necessary for taking the dep¬ 
osition. When taken out of the State, the clerk shall, upon 
the request of the party taking the deposition, issue a com¬ 
mission to the officer or commissioner designated to take 


DEPOSITIONS. 71 

the deposition. No order of court or affidavit shall be nec¬ 
essary to authorize the issuing of the commission. 

Sec. 261. "When the commission contains the name of 
the officer before whom the deposition is to be taken, his 
attestation, officially certifying the same shall be sufficient; 
but if the commission do not specify the name of the offi¬ 
cer, and he have no official seal, his certificate shall be au¬ 
thenticated by the certificate and seal of the clerk or pro- 
thonotary of any court of record of the county in which 
the officer exercises the duties of his office. 

Sec. 262 . When the depositions are to be taken in a 
foreign country, they shall be taken pursuant to an order of 
the court under a commission, with such reasonable notice 
of the time and place of taking the same as the court shall 
require; and they shall be certified and returned by the 
commissioner in such manner as the court shall direct. 

Sec. 263. Every deposition intended to be read in evi¬ 
dence must be filed in court at least one day before the time 
at which the cause in which the deposition is to be used 
stands on the docket for trial; or if filed afterwards, and 
claimed to be used on the trial, the adverse party shall be 
entitled to a continuance at the costs of the party filing the 
deposition, upon showing good cause by affidavit. 

Sec. 264. Depositions, after being filed may be published 
by the clerk, at the request of either party, after giving the 
other, his agent or attorney, reasonable notice of the time 
of publication, or they may be published by the order of 
court on the motion of either party. 

Sec. 265. Objections to the competency of a deponent, 
or to the propriety of any questions proposed to him or 
answers given by him, may be made at the time of taking 
his deposition, or in court, whether made at the taking of 
the deposition or not. 

Sec. 266. All objections to the validity of any deposi¬ 
tion, or its admissibility in evidence, shall be made before 
entering on the trial, not afterwards. But any deposition 
after the commencement of the trial, may be suppressed, if 
any matter which is not disclosed in the deposition appears, 
which is sufficient to authorize such suppression. 


72 


THE BOARD OF COMMISSIONERS. 


Sec. 267. "When an action has been dismissed, and an¬ 
other action has been commenced for the same cause, the 
depositions taken in the first action may be used in the sec¬ 
ond, or in any other action between the parties or their rep¬ 
resentatives for the same cause; but it must appear that the 
depositions have been duly filed in the court where the pre¬ 
vious cause was pending, and have remained on file from 
the time the action was dismissed until the time at which 
it was proposed to use them. 

Sec. 268. Whenever any person shall make affidavit be¬ 
fore any Circuit Court, or Court of Common Pleas, or judge 
thereof, or clerk of the court, that such person expects to 
be made a party in any action thereafter to be commenced, 
and that the testimony of a witness, whether residing with¬ 
in or out of the State, to be named in the affidavit, is mate¬ 
rial and necessary to the prosecution or defense thereof, the 
court or officer before whom the affidavit is made, shall or¬ 
der reasonable notice to be given to the party expected to- 
be adverse to the applicant or to his attorney, that on the 
day and at the place in such notice to be expressed, the wit¬ 
ness will be examined conditionally before such officer as 
shall be specified in the order. 

Sec. 269. Upon proof that the notice has been given, 
either by personal service or advertisement, at least three 
weeks successively in some public newspaper published in 
the proper county, or one most convenient thereto, (when 
the person to be notified is not an inhabitant of the State,) 
being made to the officer authorized to take the testimony,, 
he shall proceed to take and certify, seal up and return the 
depositions according to the rules provided for other depo¬ 
sitions in this act. 

Sec. 270. Every affidavit and order, and every deposi¬ 
tion so taken and certified, shall, within thirty days after 
the deposition is taken, be filed in the office of the Clerk 
of the Circuit Court, or Court of Common Pleas of the 
county where the subject-matter of such expected suit may 
be situated. The clerk shall file said deposition, and it shall 
remain sealed until published by order of the court after 
commencement of such expected action. 


DEPOSITIONS. 


73 


Sec. 271. Upon proof of the death, insanity or absence 
from the State of such witness, or inability by reason of age 
or infirmity to attend, the deposition or a certified copy 
thereof by the clerk of the court where the same is filed, 
shall be admitted as evidence in any court in this State, in 
any cause between the parties named in the affidavit, or in 
any cause between persons claiming under either of said 
parties, and shall have like effect as if the witness had been 
personally present, and given oral testimony therein, saving 
the right of exception in all cases on account of the incom¬ 
petency of the witness, or of any part of the testimony 
contained in the deposition. 

Sec. 272. An unimportant deviation from any direction 
relative to taking depositions, shall not cause any deposi¬ 
tion to be excluded where no substantial prejudice would 
be done to the opposite party. 

It is provided in section 245, supra, that depositions shall 
not be taken before any person “ being of kin to either 
party,” or interested in the action. Under this section it is 
important to know what the words “ of kin to either party” 
means, for our Supreme Court, in the case of Brady vs. Kich- 
ardson, intimated that the whole human family are related 
proximately or remotely to each other.(105) And if the 
account of man’s origin as given by Moses be correct, this 
proposition is certainly true; and unless the question has 
been settled by the rules of the common law, or by our 
legislature, this would be a question of great difficulty. But 
the legislature has settled the question beyond controversy, 
for the Act approved June 18, 1852, Section 1, Part II., 
provides that, “ where a person is required to be disinterest¬ 
ed or indifferent in acting on any question or matter affect¬ 
ing other parties, consanguinity or affinity within the sixth 
degree inclusive, by the civil law rule, or within the degree 
of second cousins inclusive, shall be deemed to disqualify 
such person from acting except by consent of parties.”(104) 

The word consanguinity, in section 1, supra , means rela¬ 
tion by blood, and the word affinity means relation by roar- 

(105) 18 Ind. 1. (104) 2 G. & H. 338; 18 Ind. 1. 

f 


74 


THE BOARD OP COMMISSIONERS. 


riage. Under this section, if a person before whom a depo¬ 
sition is to be taken is of kin to either party by blood or 
marriage, in the degree of second cousins, this would dis¬ 
qualify the officer and render the deposition void on mo¬ 
tion to suppress. But this objection can be waived by agree¬ 
ment of parties. And if one who was cognizant of the fact 
was to appear and examine witnesses before a person he 
knew was disqualified to act in that capacity by reason of 
relationship, and made no objection on that account, this 
might be deemed a waiver of the objection. 

It is provided by section 246, supra, that the party wish¬ 
ing to take depositions shall give notice to the adverse party, 
if there be only one person, and if there be several to any 
one of them who is a real party in interest, to his agent or 
attorney, such notice shall specify: 

1. The cause or matter in which the deposition is to be 
used. 

2. The cause or tribunal in which the trial is to be had. 

3. The time and place of taking the deposition. 

This notice must be in writing. It need not state the 
names of the witnesses to be examined, nor the officer be¬ 
fore whom the deposition is to be taken. It should disclose 
the place of taking the deposition with sufficient certainty 
so as to enable the adverse party to find the same without 
difficulty. (b) Below we give a form for notice: 


STATE OF INDIANA, 
County of-, 


-ss: 


John Smith vs . Richard Roe. 


Action pending before the Board of Commissioners of the Coun - 

ty of -• 

The defendant in the above entitled cause will take no¬ 
tice that in the office of the Clerk of the Circuit Court, in 
the town of Paris, Edgar county, State of Illinois, between 
the hours of nine o’clock A. M., and four o’clock, P. M., on 
the 14th day of January, 1871, the plaintiff will proceed to 
take the depositions of divers witnesses to be read in evi- 

(*) *7 Ind. 359. 

I 





DEPOSITIONS. 


75 


dence on the trial of the above entitled cause, and the ex¬ 
amination will be adjourned from day to day thereafter un¬ 
til the taking thereof is complete. 

June 1,1771. JOHH SMITH. 

This section (as has been before mentioned) provides 
that where there is more than one party plaintiff or de¬ 
fendant, that any one of the real parties in interest, his 
agent or attorney, may be served with notice, and it will be 
good as to all. A real party in interest, under this section, 
is one who is legally and immediately interested in the 
matter of the suit.(lO) To illustrate, suppose A sues B on 
a promissory note, which has been assigned to him by de¬ 
livery by C. When A brings his suit he must make C a 
party defendant to answer as to the assignment, or to his in¬ 
terest in the subject of the action.(11) Here B would be 
the real party in interest, and a notice served on him to take 
depositions would be binding on C and all others who are 
parties defendant. It is provided by section 248 supra, 
that the notice may be served in the same manner, and by 
any person authorized to serve summons for witnesses. 
And it is provided by section 229, of the act approved 
June, 1852, “ That summons my be served by the party, or 
any other person, or by the sheriff. The party or any 
other person than the sheriff*, shall not be entitled to fees for 
services. Where the summons is served by the sheriff*, his 
return is proof of the service; when served by any other 
person, the service must be shown by affidavit.(12) 

The act approved June 18,1852, section 85 provides 
that “ The summons shall be served either person¬ 
ally on the defendant, or by leaving a copy thereof at his 
usual or last place of residence. An acknowledgment on 
the back of the process, or the voluntary appearance of 
the defendant, is equal to service.(18) 

This section applies to summons for witnesses, they being 
served in the same way as the summons to the defendant. 
A notice to take a deposition may be served by the party, 

(io) Vansantwood’s Pleadings, p. no. (ii) 2 Res. by G. & H. p. 38, s. 6. 
(12) 2 Res. G. & H. p. 166. (13) 2 G. & II. pp. 60, 61. 



76 


THE BOARD OP COMMISSIONERS. 


or by any other person, or by the sheriff of the county. 
It can be served by reading it to the adverse party person¬ 
ally, or by leaving a copy at his last or usual place of resi¬ 
dence. If a party has not been in this State for six months, 
if a copy left at his last place of residence in this State 
would be good service, provided he had not changed his 
domicile.(14) The copy left need not be a certified copy; 
it will be sufficient if a copy be left.(15) If the copy was 
of a different date, still it would be a copy.(16) But the 
most usual manner of getting service is by acknowledg¬ 
ment of service on the back, or at the bottom of the no¬ 
tice. The acknowledgment may be in the following form: 

I acknowledge service of the within (or the above) no¬ 
tice. This November 1,1870. 

RICHARD ROE. 

If the adverse party will voluntarily appear, this will be 
sufficient without notice.(17) 

The time of service. It is provided by section 247 supra , 
that the adverse party shall be allowed a reasonable time to 
travel from his usual place of abode to the place of taking 
the depositions, by the ordinary route of travel, exclusive 
of the day of service, the day of taking the deposition, and 
intervening Sundays. If served on an attorney, or agent, 
a reasonable time shall be allowed him to communicate the 
same to the party. Under this section a party would not 
be authorized to take a deposition on less than three day’s 
notice, no difference how close the adverse party may live to 
the place of taking the deposition, unless it is by agree¬ 
ment of parties. But the question of sufficiency will de¬ 
pend, to a great extent, on the surrounding circumstances. 
For what might be good notice in one case, might not be 
sufficient in another. And it is not a correct way of ar¬ 
riving at the sufficiency of the notice, to take into consid¬ 
eration the question of distance only. But the facilities or 
means for traveling should be taken into account. And 
for this purpose the board should take into consideration 

(14) 2 Ind. 54. (15) 26 Ind. 65; 5 Ind. 67. (id) 4lnd. 618. (17) 2 Res. 
by G. & H. pp. 6o, 61. 



DEPOSITIONS. 77 

the geographical features of the country, and the natural 
and other means for traveling.(18) 

Our Supreme Court, in the case of Manning et ah vs. 
Goshen, held that a notice given at Goshen, Elkhart county, 
Indiana, on the 20th day of December, to take depositions 
in the city of New York, on the 29th day of the same 
month, was sufficient time.(19) And in the case of Hipes 
vs. Cochran the same court held that notice given at Cen- 
treville, Wayne county, Indiana, on the 23d day of Decem¬ 
ber to take depositions in New York on the 1st da}' of Janu¬ 
ary following, was sufficient.(20) Before the country became 
so interwoven with railroads and canals, when the facilities 
for travel were only on horse-back and in wagons, a notice 
of nine days, exclusive of the day of service, intervening 
Sundays, and the day of taking the deposition, would not 
have been sufficient time. And owing to the peculiar 
privileges that some of the States and territories of our 
Union have over others for traveling facilities, a notice to 
take a deposition in one part or section of the country, 
might be sufficient as to time, while in another section, at 
an equal distance, a notice to take depositions on the same 
time would not be sufficient. And in determining the 
question of time, the board, if they are not already fa¬ 
miliar with the facilities for travel, may hear proof, or 
make use of any other evidence from which they can 
obtain the desired information. They may use maps, 
or newspapers, or books for this purpose. The deposition 
of all witnesses living out of this State, and all witnesses 
living in any but adjoining counties in this State, may 
be taken on notice, including parties to the suit.(21) It is 
provided by section 249 that “in all actions the court 
may order the taking of depositions whenever deemed 
necessary to determine the rights of the parties, or to ex¬ 
pedite the trial of the cause, and may, if necessary for 
that purpose, order a continuance until next term.” And 
when the board is sitting as a court in special session, as 

(18) 13 Ind. 175; 27 Ind. 399. (19) 27 Ind. 399 (20) 13 Ind. 155. 

(21) 27 Ind. 387. 


78 


THE BOARD OP COMMISSIONERS. 


they do in all contested election trials, they would have to 
designate a day in the future (not more than twenty days) 
for them to meet, provided they wish to continue the cause 
for this purpose. And in contested election cases there is 
generally more reasons for the exercise of this power by 
the board than in almost any other cases, from the fact that 
it often happens that the witnesses are numerous, and scat¬ 
tered over a vast extent of territory so that it would be 
impossible to bring them all before the board. And it very 
frequently happens that in ordinary suits and proceedings 
before the board, that the parties’ witnesses reside in a dif¬ 
ferent, but adjoining county, from that where the trial is 
pending. Under such circumstances the board, if it deems 
it necessary for the promotion of justice, may order the 
taking of depositions of the witnesses, providing the par¬ 
ties litigant, or either one of them, makes application for 
such an order. As a general rule, where a witness whose 
deposition has been taken, appears in court, his deposition 
cannot be read in evidence. But to this rule there are two 
exceptions; 1. When the deposition has been taken by 
the agreement of parties. 2. When the deposition has 
been taken by an order from court. 

The depositions of the following persons may be taken 
and read in evidence, no difference where they may reside: 

1. Where the deponent is so aged, infirm or sick as not 
to be able to attend court or other place of trial, or is dead. 

2. When the deponent is a State or county officer, or a 
judge, or a practicing physician, or an attorney at law, and 
the trial is to be had in any county in which the deponent 
does not reside. 

In either of the above cases the attendance of witnesses 
can not be enforced. But before a deposition of the above 
named persons can be read in evidence it must appear to 
the satisfaction of the board trying the cause that the cause 
for taking the depositions still exists.(22) 

On the taking of depositions the deponent is generally 
asked the questions as to his age, occupation and place of 


(22) Section 259, supra; 28 Ind. 296. 



DEPOSITIONS. 


79 


residence; and his answer to these questions generally raises 
a presumption that such facts as he has testified to are true; 
and if they show on their face the facts necessary to autho¬ 
rize the taking of their depositions, it would seem, from all 
their former precedents and rules of evidence, that this ought 
to be, jprima facie , sufficient to admit all depositions of this 
kind to he read in evidence. When a condition of the 
body or mind is once established, that condition is presumed 
to continue until the contrary is shown. And we think 
that as the party who has taken the deposition of the wit¬ 
ness has established the fact by the evidence of the depo¬ 
nent, that this ought to make a prima facie case in his favor 
and admit the deposition to be read in evidence, unless the 
adverse party could overturn this evidence by other proof. 

Where the deposition of a witness has been taken who 
lives out of this State, and this fact is so stated by him in 
his deposition, it raises a presumption that will authorize 
the admittance of the deposition as evidence on the trial 
without further testimony as to that fact. But the pre¬ 
sumption is a disputable one and may be overturned by other 
testimony. 

When a deposition is to be taken in this State it can be 
done before any officer who is authorized to administer 
oaths for general purposes without a commission. But 
when they are to be taken out of the State the auditor must, 
on the request of either party, issue a commission to some 
person of the State where the deposition is to be taken, who 
is authorized to administer an oath for that purpose by the 
laws of the State in which he resides, authorizing him to 
take the deposition. The following form may be used: 

STATE OF INDIANA, \ cc! 

-County. / SS * 

State of Indiana to Thomas Smith, or any judge, justice 
of the peace, notary public, mayor or recorder of a city^ 
clerk of a court of record, or commissioner appointed by 
the court to take depositions according to law, reposing full 
faith and confidence in your fidelity and faithfulness, you 
are hereby commissioned and authorized at the office of the 



80 


THE BOARD OF COMMISSIONERS. 


Clerk of the Circuit Court, in the town of Paris, Edgar 
county, Illinois, on the 14th day of January, 1871, between 
the hours of nine o’clock A. M., and four o’clock P. M., of 
said day, to examine, under oath or affirmation, to be by 
you first administered, on the part of the plaintiff, in a cause 

now pending before the Board of Commissioners of- 

county, State of Indiana, wherein John Smith is plaintiff 
and Richard Roe is defendant, as well on the part of the 
defendant as of the plaintiff, on all such interrogatories as 
may be asked them by the parties. That you carefully write 
down such interrogatories and the answers thereto, or cause the 
same to be done by the deponent or by some disinterested 
person in your presence and under your direction, and after 
the same has been carefully read to or by the deponents, 
respectively, you can then cause said witnesses to subscribe 
their names to each of their depositions. After which you 
will make out and attach to said depositions the following 
certificate: 


STATE OF ILLINOIS, 
Edgar County. 


} 


ss: 


I,-, a-in and for said county and State afore¬ 

said, do hereby certify that the above named deponents was 
(or were) by me first duly sworn (or affirmed, as the case 
may be) to tell the truth, the whole truth, and nothing but 
the truth in the cause now pending before the Board of 

County Commissioners of-county, State of Indiana, 

wherein John Smith is plaintiff* and Richard Roe is defend¬ 
ant, that the foregoing depositions were (or was) all writ¬ 
ten by me (or by S. A., a disinterested person, in my pres¬ 
ence and under my direction), and that the said deponents 
severally subscribed their respective names to the same (or 
name), after the same had been read over to them carefully 
(or by them), by me. That Richard Roe, the defendant, 
was (or was not) present at the taking of said depositions 
either in person or by agent or attorney. That the said 
depositions were (or was) taken at the office of the Clerk 
of the Circuit Court, in the town of Baris, Edgar county, 
State of Illinois, on the 14th day of January, 1871, between 





DEPOSITIONS. 


81 


the hours of nine o’clock A. M., and four o’clock P. M., of 
said day, agreeably in all respects to the annexed notice and 
commission. 

In witness whereof I have hereunto subscribed my name 
and affixed my (official) seal on this 14th day of January, 
1871. - , [seal.] 

That after you have attached the above certificate to said 
deposition, that you sign the same and affix to your signa¬ 
ture your official name and the seal of your office (or official 
seal); that you then put said depositions (or deposition) in 
a paper envelope with the notice and this commission at¬ 
tached to the said deposition, and seal said envelope, and 
indorse on the back of the envelope the name of the par¬ 
ties, -vs.-, and the names of the witnesses 

whose depositions are inclosed, and direct the same to the 

Auditor of-county, at-, Indiana, and forward 

the same to me with all possible speed. 

In witness whereof I have hereunto set my hand and offi¬ 
cial seal this 2d day of January, A. D., 1871. 

[seal.] -, Auditor of-county, Indiana. 

But it sometimes happens that witnesses leave the United 
States after a cause of action has been commenced, or may 
reside in some foreign country; under such circumstances 
their depositions must be taken pursuant to an order of the 
court, under a commission, with such reasonable notice of 
the time and place of taking the same as the court shall 
require, to be certified and returned to the commissioners 
in such a manner as the court shall direct. 

To enable you to get an order under such circumstances, 
you must apply to the board for an order authorizing you 
to take the same. The application had better be made on 
affidavit showing that the witness is competent, that his 
testimony is material, setting out the material facts, and his 
name, and where he resides, and the name of the county, 
district or town you expect to take the deposition in, and 
the name of the officer before whom the deposition is to 
be taken. The following form may be used: 










82 


THE BOARD OP COMMISSIONERS. 


STATE OF IHDIAUA,) 

-County. / ss - 

Before the Board of Commissioners of - County , Indiana: 

John Smith vs . Eichard Eoe. 

John Smith, plaintiff in the above entitled cause, being 
duly sworn, upon his oath says that he can not safely go to 
trial at this sitting of this court on account of the absence 
of James Kay a material and competent witness for this 
plaintiff. That he expects to prove by the said James Eay 
that one Seth Thomas, who voted at the Union precinct, in 

ITelt township,-county, Indiana, for Eichard Eoe at 

the October election for the year eighteen hundred and sev¬ 
enty, was not at the time he so voted a resident of the State 
of Indiana. That the said James Eay, before the com¬ 
mencement of this suit, and ever since, resided in the city 
of London, in the kingdom of England. That he can not 
prove such facts by any other witness whose testimony can 
be as readily procured, and that he believes said facts are true. 
That the absence of the said James Eay has not been pro¬ 
cured by the act or connivance of the plaintiff, John Smith, 
nor by others at his request nor with his knowledge and con¬ 
sent. He therefore asks the board to grant (this plaintiff) 
him an order authorizing him to take the deposition of the 
said James Eay before a commissioner to be appointed by 
this court, and that this court fix the time and place of the 
taking of the aforesaid deposition, and also specify the time 
that the defendant, Eichard Eoe, shall be notified of the 
taking of said deposition, and in what manner it shall be 
sealed up; and that this cause be continued a reasonable 
time, not to exceed twenty days, to enable him to procure 
the testimony of the said James Eay, which he believes he 
can do in fifteen days. 

JOHN SMITH. 

Subscribed and sworn to before me this 5th day of De¬ 
cember, 1870.(57) 


( 57 ) 2 G. & H., p. 177, sec. 262. 


--, Auditor. 






DEPOSITIONS. 


83 


Take your affidavit and go before the board and present 
it, and move for a continuance to enable you to take depo¬ 
sitions, and if the board shall be of the opinion that you 
have made out a good cause for a continuance, and there is 
a probability of your procuring the testimony of your 
witness in a reasonable time, they will cause an order to be 
entered of record authorizing you to take depositions. 

Form for the record: 


John Smith vs. Erhard Eoe. 


Comes now John Smith, plaintiff in the above entitled 
cause, and shows by affidavit to the satisfaction of the 
board, that James Eay is a material and competent witness 
for him in this cause, and that he expects to prove by the 
said James Eay, that one Seth Thomas, who voted at the 

Union precinct, in Helt township,-county, Indiana, 

for the defendant Eichard Eoe, at the October election, 
1870, was not, at the time he so voted, a resident of the 
State of Indiana; and that the said James Eay now resides 
in the city of London, in the Kingdom of England. It is 
therefore ordered by the board that the said John Smith be; 
and he is hereby authorized to take the deposition of the 
said James Eay, and that he give the defendant, Eichard 
Eoe, 20 days’ notice of the time and place of taking said 
deposition, and that the deposition, when taken, shall be 
certified, sealed up and marked as depositions taken in this 
State are certified, marked and sealed up, and that the clerk 
of this court issue a commission to some officer authorized 
to administer oaths, resident of the city of London, in the 
Kingdom of England, authorizing him to take said deposi¬ 
tion, and that this cause be continued until the 25th day of 
the present month. This December 5, 1870. 



The auditor can use the form in ante p. 81 of this book. 
Every deposition intended to be read in evidence must 


7 



84 


THE BOARD OF COMMISSIONERS. 


be filed in court at least one day before the time at which 
the cause in which the deposition is to be used, stands on 
the docket for trial. And if they are filed afterwards, and 
the party proposes to use them, his adversary will be enti¬ 
tled to a continuance for cause shown by the affidavit.(76) 
After you have filed your deposition with the auditor, if 
you desire to open it in vacation, you can do so by giving 
the adverse party reasonable notice of the time and place 
of opening the same.(77) 

The following form may be used: 

John Smith vs. Richard Roe. 

Before the Board of Commissioners of - County: 

The defendant in the above entitled cause, Richard Roe, 
will take notice, that on the 10th day of December, 1870, 
the plaintiff will, at the auditor’s office, in the town of 
Newport, in said county, request the auditor of said county 
to open the deposition of J ames Ray, now on file in the 
auditor’s office of said county, which deposition was taken 
in the above entitled cause. Said request will be made at 
one o’clock p. m. of said day. 

This December 6,1870. JOHN SMITH. 

Serve the notice on the adverse party or his attorney, 
giving him a reasonable time to appear and resist said mo¬ 
tion. The notice may be served by reading the same to 
the opposite party or his attorney, or by leaving a copy at 
their last usual place of residence. On the day set for the 
opening of the depositions, you must show to the satisfac¬ 
tion of the auditor that the adverse party has had notice. 
This may be done by affidavit or otherwise. After you 
have done this the auditor will be authorized to open the 
depositions. But a proceeding of this kind would be use¬ 
less if you are aware of the contents of the deposition, be¬ 
cause you can wait until court convenes, and then on mo¬ 
tion get an order to publish all depositions on file in the 
cause.(115) 

(76) 2 Res. by G. & H. p. 178, s. 163. (77) 2 Res. G. & H. p. 178, s. 264. 
(115) Sec. supra. 




DEPOSITIONS. 


85 


MOTION TO SUPPRESS. 

If a deposition has not been taken according to the re¬ 
quirements of the statute, or contrary to the rules govern¬ 
ing the production of evidence, you may move to suppress 
the whole or any part of the same. The most general 
reasons for suppressing depositions are— 

1. On account of the insufficiency of the notice; that it 
was not sufficient as to time; that there was a defect in the 
service of the notice. 

2. That the certificate of the officer is not in accord¬ 
ance with the requirements of the statute; and if the cer¬ 
tificate differs much from the form given on ante p. — of 
this work, it will be bad on motion to suppress. 

8. Jhat the officer before whom the deposition was 
taken is of kin to the party taking the deposition, by con¬ 
sanguinity or affinity in the degree of second cousins in¬ 
clusive. 

4 

4. That the officer before whom the deposition was 
taken, was not at the time of taking thereof, authorized to 
administer an oath to the witness. 

5. That the witness was not competent to testify. 

6. That the deponent is a resident of the county where 
the trial is to take place, or of an adjoining county of this 
State. 

But it sometimes happens that a deposition is good in 
part and bad in part. (116) Under such circumstances you 
must move to suppress the questions and answers supposed 
to be defective. The most general reasons for suppressing 
questions and answers are— 

1. That leading questions have been propounded to the 
witness. 

2. That the testimony is irrelevant to the issues in the 
case. 

These are only a part of the many reasons for suppress¬ 
ing depositions, and questions and answers. The court 
should exercise considerable care on motions to suppress 
depositions or any part thereof; for it is provided by section 


(i 16) 2i Ind. 183. 



86 


THE BOARD OF COMMISSIONERS. 


272 supra , that “An unimportant deviation from any direc¬ 
tion relative to taking depositions, shall not cause the depo¬ 
sitions to be excluded, where no substantial prejudice 
would be done to the opposite party.(117) And before the 
court should sustain a motion to suppress a deposition on 
account of the irrelevancy of the testimony, it should 
make a careful survey of the whole case to be litigated, 
and ascertain as far as possible, the issues and points that 
will arise in the case. For it sometimes happens that a 
deposition is taken for the purpose of impeaching the char¬ 
acter of a witness for truth and veracity, or for the pur¬ 
pose of contradicting some statement that some witness is 
expected to testify to on the trial. But in order to have 
your motion entertained by the court, you must make it 
at the proper time. 

The motion to suppress, as a general rule, should be 
made before the commencement of the trial, but to this 
rule there are exceptions. All motions to suppress on ac¬ 
count of defects which are apparent upon the face of the 
deposition must be made before the commencement of the 
trial; if not made before that time it will then be conclu¬ 
sively presumed that you waived the same. (118) And when 
you put in your motion to suppress a deposition, or any part 
thereof, you should press the court for a decision upon your 
motion, for if it fails to decide the question until the trial 
is commenced, it will be presumed that you waived the de- 
fect.(119) But a deposition, or any part thereof, may be 
suppressed if any matter not disclosed in the deposition ap¬ 
pears which will authorize such suppression. (120) 

You can make your motion orally, or you can put it in 
writing. But the point relied upon for suppression must be 
presented in your motion in as clear a light as possible.(121) 
But the better way is to put the motion in writing. 


(i 17) 15 Ind. 64; 22 Ind. 194; 8 Blackf.215; 26I1KI.456. (118) 8 Blackf. 
215; 26 Ind. 456. (119) 20 Ind. 215. (120) 20 Ind. 215; 2 Res. by G. & H. 
p. 178, sec. 266, supra; 8 Blackf. 215; 15 Ind. 303. (121) 27 Ind. 531; Id. 
399 - 



WRITTEN EVIDENCE. 


87 


Form of Motion. 

John Smith vs. Richard Roe. 

Before the Board of Commissioners: 

The defendant in the above entitled cause moves the court 
to suppress the deposition of James Ray, for the following 
reasons: 

1. The certificate of the justice before whom the same 
was taken does not state whether the defendant was present 
at the taking of said deposition. 

2. And that it fails to show that the deponent was first 
duly sworn according to law. 

RICHARD ROE. 


CHAPTER IV. 

WRITTEN EVIDENCE. 

Writings are divided into classes, public and private, or 
those of record and those not of record. But there is no 
difference in evidence between sealed and unsealed writings. 
We will first notice those instruments of writing that are 
of a public nature. It is provided in the statute that: 

Sec. 273. There shall be no difference in evidence be¬ 
tween sealed and unsealed writings; and every writing not 
sealed shall have the same force and effect that it would 
have if sealed. A writing under seal, except conveyances 
of real estate, or any interest therein, may therefore be 
changed, or altogether discharged by a writing not under 
seal. An agreement in writing, without a seal, for the com¬ 
promise or settlement of a debt, is as obligatory as if a seal 
were affixed. 

Sec. 274. The execution of an instrument is the sub¬ 
scribing and delivering it, with or without affixing a seal. 

Sec. 275. Recitals in any written instrument shall have 
no greater effect than they have heretofore had in writings 
not under seaL 



88 


THE BOARD OF COMMISSIONERS. 


Sec. 276. The last three sections do not repeal or affect 
any statute of this State expressly requiring a seal to a deed 
or other instrument. 

Of Documentary and other Written Evidence. 

Sec. 277. The printed statute books of this State, and 
of the late territory north-west of the river Ohio, and the 
territories of Indiana and Illinois, purporting to be printed 
under the authority of said state or territories, shall be evi¬ 
dence in all courts and places of the acts therein contained. 

Sec. 278. The printed statute books of the several States 
and territories of the United States, purporting to be print¬ 
ed under the authority of those States and territories; and 
any copy of any statute, or part thereof, contained therein, 
having attached thereto the certificate of the Secretary of 
State, under the seal of the State, certifying the copy to be 
complete and correct; that the statute book from which the 
copy is taken is deposited in the office of the Secretary, or 
in the State Library; and is by him believed to have been 
received under the authority of the State or territory pur¬ 
porting to have enacted the same; shall be presumptive 
evidence in all courts of the legislative acts, public or pri¬ 
vate, of those States or territories respectively. 

Sec. 279. Copies of the proceedings and judgments of 
any justice or justices of the peace of any State or territory 
of the United States, certified by the justice or justices un¬ 
der his or their hands and seals, before whom the proceed¬ 
ings were had or judgments rendered, or their successors 
in office or other justices having legal custody thereof, that 
the same are true and complete copies of the proceedings 
or judgments, with the certificate of the clerk or protho- 
notary of any court of record of the county or district where 
said justice or justices shall hold his or their office or offi¬ 
ces, certifying under the seal of said court that the justice 
or justices was or were at the time when the proceedings 
were had or judgment rendered, and when the copy was 
taken, duly commissioned and qualified to act as such, shall 
be admissible as evidence in any of the courts in this State. 


WRITTEN EVIDENCE. 


89 


Sec. 280. Copies of the proceedings and judgments of 
any justice of the peace of this State, certified under his 
hand and seal, or under the hand and seal of the justice 
who may have the legal custody thereof, as true and com¬ 
plete copies of such proceedings or judgments, shall be re¬ 
ceived as evidence in the several courts in this State. 

Sec. 281. Certificates or instruments, either printed or 
written, purporting to be the official act of a notary public 
of this State, or any other State or territory of the United 
States, and purporting to be under the seal and signature 
of such notary public, shall be received as presumptive evi¬ 
dence of the official character of such instrument and of 
the acts therein set forth. 

Sec. 282 . The certificate of the Secretary of State, under 
the seal of State, stating the time when any act or acts of 
the General Assembly were deposited in his office, or depos¬ 
ited in the office of the clerk of any circuit court, or court 
of common pleas, in this State, as shall appear from the cer¬ 
tificate or receipt of any such clerk, shall be admissible in 
all the courts of this State as evidence of the facts stated in 
such secretary’s certificate. 

Sec. 283 . Exemplifications or copies of records, and rec¬ 
ords of deeds or other instruments, or of office books 
or parts thereof, and official bonds which are kept in any 
public office in this State, shall be proved or admitted as 
legal evidence in any court or office in this State, by the 
attestation of the keeper of said records, or books, deeds or 
other instruments, or official bonds, that the same are true 
and complete copies of the records, bonds, instruments or 
books, or parts thereof, in his custody, and the seal of office 
of said keeper thereto annexed, if there be a seal, and 
if there be no official seal, there shall be attached to the at¬ 
testation the certificate of the clerk and the seal of the cir¬ 
cuit court of the proper county where such keeper resides, 
that said attestation is made by the proper officer. 

Sec. 284. The acts and proceedings of corporations may 
be proved by a sworn copy of the record of such acts and 
proceedings; the oath shall be made by the person having 
the legal custody of such records, and shall state that such 


90 


THE BOARD OF COMMISSIONERS. 


transcript is a true and full copy of the original, and that 
such original has remained unaltered from its date, to the 
best of deponent’s knowledge and belief. Such sworn 
copies shall be received as evidence in all cases in which the 
original would be evidence. 

Sec. 285. E^ery act of the legislature of any one of the 
States or territories of the United States, certified by the 
Secretary, and having the seal of the State or territory 
affixed thereto, shall be deemed authentic, and receive full 
faith and credit when offered in evidence in any court within 
this State. 

Sec. 286. The records and judicial proceedings of the 
several courts of record, of or within the United States or 
the territories thereof, shall be admitted in the courts within 
this State as evidence, by attestation or certificate of the 
clerk or prothonotary, and the seal of the court annexed, 
together with the seal of the chief justice or one or more 
of the judges, or the presiding magistrate of any such court, 
that the person who signed the attestation or certificate was, 
at the time of subscribing it, the clerk or prothonotary of 
the court, and that the attestation is in due form of law; 
and the records and judical proceedings, authenticated as 
aforesaid, shall have full faith and credit given to them in 
any court within this State, as, by law or usage, they have 
in the courts whence taken. 

Sec. 287. When notice is, in any action, proceeding or 
sale under execution,or other matter required by the provi¬ 
sions of law, to be,given by publication in any newspaper, 
an affidavit of the printer, or any person in his employ, as a 
clerk or printer, of a competent age, annexed to a copy of 
the notice taken from the paper in which it was published, 
may be filed in the clerk’s office by the person whose duty 
it was to cause the publication to be made; such affidavit 
must specify the county, the time when, and the paper in 
which the notice was published. 

Sec. 288. The original affidavit and copy of the notice, 
filed pursuant to the provisions of the last section, and 
copies thereof, duly certified by the clerk, shall be presump- 


WRITTEN EVIDENCE. 


91 


tive evidence in all case3 and before every court, of the facts 
contained in the affidavit. 

Sec. 289. When any affidavit is taken in another State 
and certified by the officer or justice of the peace taking 
the same, under his hand and seal of office, if he have any 
such seal, and attested by the clerk of the circuit or district 
court, or court of common pleas of the county where such 
officer exercises the duties of his office, under the hand of 
the clerk and the seal of his court, the clerk also certifying 
that the officer or justice of the peace, is, by the laws of 
said State, duly empowered to administer oaths and affirma¬ 
tions, and take affidavits, every such affidavit shall be deem¬ 
ed sufficiently authenticated, and may be received and used 
in any of the courts of this State. 

Sec. 290. The unwritten or common law of any other 
of the United States, or of the territories thereof, may be 
proved as facts by parol evidence, and the books of reports 
of cases adjudged in their courts may also bo admitted in 
evidence of such law. 

Sec. 291. The existence and tenor or effect of the laws 
of any foreign country, may be proved as facts by parol 
evidence; but if it shall appear that the law in question is 
contained in a written statute or code, the court may, in 
their discretion, reject any evidence of such law which is 
not accompanied by a copy thereof. 

Sec. 292 . The proof of the service of any process 
issued by the court, or of any notice required to be served 
upon any party, shall be as follows: 

First. If served by the sheriff, his certificate thereof; or, 

Second. By any other person, his affidavit thereof; or, 

Third. In case of publication, a printed copy, with the 
affidavit of the printer, his foreman, or clerk, or of any 
competent witness. 

Fourth. The written admission of the defendant. The 
affidavit or admission must state the time and place of 
service. 

Sec. 293. The clerk shall endorse upon every paper 
filed in his office or in open court, and upon every process 
returned to him or to the court, except summonses, the date 


92 


THE BOARD OF COMMISSIONERS. 


of the filing and return; and the endorsement shall be pre¬ 
sumptive evidence of the time of the filing and return. 

And it is provided by the act approved March 6th, 1861, 
That the register, catalogue, tract-book, plat-book and de¬ 
scription of lands, kept at any land office of the United 
States, located in this State, or at any office for the sale of 
Canal or Michigan lands, and copies thereof, duly certified as 
true and complete by their proper keeper, and copies duly 
certified by the Auditor of State, as true and complete copies 
from said original documents, or from copies of the same, 
legally deposited in the office of said Auditor of State, shall 
be admissible in evidence in civil actions in all the courts of 
this State, and shall be taken and held as prima facie evi¬ 
dence of the truth of their contents. 

And it is provided by the act of Congress approved 
May 26,1790, that the acts of the legislatures of the sev¬ 
eral States shall be authenticated by having the seal of 
their respective States affixed thereto: the records and 
judicial proceedings of the courts of any State shall be 
proved or admitted in any other court within the United 
States,'by-the attestation.of the clerk and the seal of the 
court annexed, if there be a seal, together with a certifi¬ 
cate of the judge, chief justice, or presiding magistrate, as 
the case may be, that the said attestation is in due form. 
And the said records and judicial proceedings, authentica¬ 
ted as aforesaid, shall have such faith and credit given to 
them in every court within the United States, as they have 
by law or usage in the courts of the State from whence the 
said records are or shall be taken. 

That all records and exemplification of office books which 
are or may be kept in any public office of any State not ap¬ 
pertaining to courts, shall be proved or admitted in any 
other court or office in any other State by attestation of the 
keeper of said record or books and seal of his office thereto 
annexed, if there be a seal, together with the certificate of 
the presiding justice of the court of the county or district, 


WRITTEN EVIDENCE. 


93 


as the case may be, in which such office is or may be kept, 
or of the Governor, the Secretary of State, the Chancelor, 
or the keeper of the great seal of the State, that the said 
attestation is in due form and by the proper officer, and the 
said certificate, if given by the presiding justice of a court, 
shall be further authenticated by the clerk prothonotary of 
the court, who shall certify under his hand and the seal of 
his office, that the said presiding justice is duly commisioned 
and qualified; or if the certificate be given by the Gov¬ 
ernor, the Secretary of State, the chancellor or the keeper 
of the greatseal, it shall be under the great seal of the State 
in which the said certificate is made. And the said record 
and exemplifications authenticated as aforesaid, shall have 
such faith and credit given to them in any court and office 
within the United States as they have by law or usage in 
the courts and offices of the State from which the same are 
or shall be taken.(122) 

These two statutes being alike in many respects, we have 
given them together. But it has frequently been held by 
the supreme courts of the different states, that the act of 
Congress only applied to cases arising in courts of general 
jurisdiction,(123) and that a judgment of a justice of the 
peace was not within the meaning of the statutory provis¬ 
ion. Hence the judgment of an inferior court of limited 
jurisdiction must be certified according to the provisions 
of our statute. It will be seen by reference to section 283 
supra , that the certificate of the officer must show that the 
copy to which the same is attached, is a a true and complete 
copy of-&c. 

Under this section our supreme court held, in the case of 
Tull vs. David, that the following certificate was insuffi¬ 
cient: 

“Stateof Indiana, Brown county: I, Thomas M. Adams, 
Clerk of the Court of Common Pleas of said county, 
hereby certify that the foregoing is a true transcript of the 
proceedings had in said cause, as appears of record in the 

(122) Brightly’s Digest of U. S. Laws, pp. 265, 266. (123) 1 GreenleaPs 

Ev. sec. 505; 5 Ohio 545; 3 Wend. 267. 



94 


THE BOARD OF COMMISSIONERS. 


book of my office. Given under my band and official seal, 
this 18th day of April, 1864. 

THOMAS M. ADAMS, Clerk. 

The-court held that the certificate should have been in 
the language of the statute, and said “a full, true and com¬ 
plete transcript.” (124) 

The following certificate was held sufficient under section 
1 of act of 1861, supra: 

“Auditor’s Office, Indianapolis, April 27,1841. I, Mor¬ 
ris Morris, auditor of public accounts, do hereby certify 
that the foregoing list of lands is correctly transcribed from 
the tract on file in my office. M. MORRIS, A. P. A.” 
(80 Ind. 806). 

For the purpose of aiding the different county officers 
throughout the State, in discharging their duty in this re¬ 
spect, we have given different forms which can be used. 

Certificate of the Auditor: 


STATE OF INDIANA, 
Vermillion county, 



I, J. T., Auditor in and forthe county and State afore¬ 
said, do hereby certify that the above and foregoing is a 
full and complete copy of the real estate and personal 
property listed and assessed to James Hand, and the taxes 
assessed on the same in Vermillion county, Indiana, for the 
year eighteen hundred and seventy-one, as appears from 
the assessment rolls as returned to me by the real estate 
appraisers of said county, and the assessor of Helt town¬ 
ship in said county, on file in my office, and tax duplicate 
of said county for the aforesaid year, of all of which I am 
the legal custodian. In witness whereof I have hereunto 
set my hand and affixed my official seal. Done at New¬ 
port, this July 7, A. D. 1871. 

[seal.] J. T. f Auditor. 


(124) 27 Ind. 377; 25 Ind. 376. 



WRITTEN EVIDENCE. 


95 


To this should be attached the certificate of the Secre¬ 
tary of State, or of the Governor thereof, when the tran¬ 
script is to be used in evidence out of this State. 

Certificate of the Clerk: 

STATE OF INDIANA,! 

Vermillion county, / * 

I, J. A. B., Clerk Circuit Court, in and for said county 
and State aforesaid, do hereby certify that the above and 
foregoing is a full, true and complete copy of the proceed¬ 
ings and judgment in the case of John Jones vs. Seth 
Thomas, as appears of record in my offiee, of which re¬ 
cord I am the legal custodian. In witness whereof I have 
hereunto set my hand and official seal, this 7th day of 
July, A. D. 1871. 

[seal.] J. A. B., Clerk. 

If the transcript is to be used out of this State, there 
should be attached to this certificate the certificate of the 
Judge of the Circuit Court of said county. 

The Judge’s certificate may be in the following form: 

STATE OF INDIANA, 1 # 

18th Judicial Circuit, / 

I, C. Y. P., Judge of the Circuit Court within and for 
the 18th Judicial District of the State of Indiana, do 
hereby certify that the above certificate and attestation of 
J. A. B., attached to the above record, is in due form of 
law, and is made by the proper officer, and the signature 
thereto appears to be genuine. And I further certify, that 
Vermillion county is in the 18th Judicial Circuit of the 
State of Indiana, of which circuit I am Judge, and that 
J. A. B., at the time he signed said certificate and attesta¬ 
tion, to-wit: on the 7th day of July, A. D. 1871, was the 
Clerk of the Circuit Court of Vermillion county, Indiana. 
In witness whereof I have hereunto set my hand and seal, 
this tenth day of July, A. D. 1871. 

[seal.] C. Y. P., Judge. 


96 


THE BOARD OF COMMISSIONERS. 


The above certificates of the auditor and clerk may be 
used for transcripts and documents to be used in evidence, 
either within or without the State. 

J3ut it sometimes happens that the adverse party has 
possession of certain documents that you may want to use 
in evidence on the trial of a cause. 

The code provides: 

Sec. 304. If either party at any time before trial allow 
the other an inspection of any writing, material to the ac¬ 
tion, whether mentioned in the pleadings or not, and de¬ 
liver to him a copy thereof, with notice that he intends to 
read the same in evidence on the trial of the cause, it may 
be so read, without proof of its genuineness or execution, 
unless denied by affidavit before the commencement of the 
trial; if such denial be made of any writing not mentioned 
in the pleadings, the court may give time to either party to 
procure evidence when necessary for the furtherance of 
justice. 

Sec. 305. The court or judge thereof may, upon motion, 
compel by order, either party to produce, at or before the 
trial, any book, paper, or document in his possession or 
power; the order may be made upon application of either 
party, upon reasonable notice to the adverse party, or his 
attorney,—if not produced, parol evidence may be given 
of their contents. 

Sec. 306. The court, or a judge thereof, may, under 
proper restrictions, upon due notice, order either party to 
give the other, within a specified time, an inspection and a 
copy, of any book or part thereof, paper or document in 
his possession, or under his control, containing evidence 
relating to the merits of the action, or the defense therein; 
if compliance with the order be refused, the court, on mo¬ 
tion, may exclude such evidence, or punish the party re¬ 
fusing, or both. 

But these two latter sections apply only to documents 
which the party desires to use in evidence, and which are 
not referred to or made a part of the pleading.(125) At 


(125) 17 Ind. 142. 



TIME OP MEETING. 


97 


common law where the form of action or pleading gave the 
party notice to be prepared to produce a written instrument 
no other notice to produce is necessary.(126) 

The party under these sections should have reasonable 
notice, and this must be governed by the circumstances of 
each case. When the paper designed to be used is in the 
possession of the adverse party who is in court, or when 
the paper is in possession of the opposite party so near 
where the court is sitting that it can be obtained without 
delaying the trial, and without material inconvenience to 
the party, a notice given after the trial had commenced is 
sufficient. But where* from the nature of the instrument, 
or from its connection with the cause, it may fairly be pre¬ 
sumed to be in the possession of the party or his attorney 
in court, and the motion is made pending the trial, the party 
must affirmatively deny that he has the same in court, or a 
notice will be held good. Neither of the parties litigant, 
nor their attorney, can be compelled to leave court and go 
for papers or books.(126) And where the motion is made 
to obtain inspection of any document mentioned or referred 
to in the pleadings, and not for the purpose of using it in 
evidence, no notice is necessary.(127) 


CHAPTER Y. 

THEIR TIME AND PLACE OF MEETING. 

The act approved March 7, 1863, provides that “such 
commissioners shall meet at the court-house or auditor’s 
office in each county on the first Mondays in March, June, 
September and December in each year; and in counties 
whose population is under ten thousand such commissioners 
may sit six days at such term; in counties whose popula- 

(126) 17 Ind. 142; 13 Wend. 505; 4 Wend. 626, id. 623; 7 Wend. 198; 
18 Ind. hi. (126) 13 Wend. 505; 4 Wend. 623. (127) 17 Ind. 142; 18 Ind. 
III. 




98 


THE BOARD OP COMMISSIONERS. 


tion exceed ten thousand and is under thirty thousand, tney 
may sit nine days; but in counties whose population exceeds 
thirty thousand such commissioners may sit fifteen days if 
the business of the term requires it. The enumeration to 
be fixed by the last census of the United States, or the latest 
enumeration by the State.”(128) 

And it is provided by the act, approved March 7, 1863, 
that special sessions of the Board of County Commissioners 
of the several counties in this State may be called whenever 
the public interest requires it; first, by the county auditor; 
secondly, by the clerk of the circuit court, in case of the 
death or disqualification of the county auditor; thirdly, by 
the Recorder of the proper county, in case of the disqualifi¬ 
cation from any cause of both county auditor and clerk of 
the circuit court. And that six days’ notice of such spe¬ 
cial session shall be given, unless in the opinion of the offi¬ 
cer calling the same an emergency exists requiring a short 
notice, in that case the officer may fix the time at his dis¬ 
cretion. (129) 

Under this act it is the duty of these officers to call a spe¬ 
cial session of the Board of Commissioners of their county 
whenever they may think the interest of the county de¬ 
mands it. To do so they must issue to the sheriff of their 
county a summons commanding him to notify each mem¬ 
ber of the board of the time and place of their meeting. 
The summons is served in the same way as parties defend¬ 
ants are served, either by reading or leaving a copy at his 
last usual place of residence. 

The following form may be used: 

STATE OF INDIANA,! 

Vermillion County. j SS: 

To the Sheriff of said County , Greeting: 

Whereas in my opinion the interest of Vermillion county 
demands that the Board of Commissioners of said county 
should meet in special session, you are therefore command¬ 
ed to summons A, B and C, who now constitute said board, 


(128) Act of 1863, p. 32. (129) Act of 1863, p. 19. 



TIME OP MEETING. 


99 


to appear and attend a special session of the Board of Com¬ 
missioners of said county, to be holden at the court-house 

in Newport, Indiana, on the - day of-, 1871, to 

meet at the hour of nine o’clock, A. M., of said day, and 
then and there return this writ. 

Witness my hand and official seal this-day of-, 

1871. 

[SEAL.] J. T., Auditor. 

It is unnecessary to set out in the summons the object for 
which the auditor or other officer who calls the special ses¬ 
sion intends them to consider. After they meet in special 
session, if the interest of the county demands it, they may 
transact any business that the law authorizes them to do, 
and may adjourn from day to day until the business of the 
county that requires attention is disposed of and finished. 
The officer who calls them together is the sole judge of the 
necessity for a called session of the board, but the board 
after it is once convened in special session is the sole judge 
of the length of time they will sit, and of the business they 
shall transact.(130) 

It is not necessary that the commissioners’ record should 
show the call; it may be shown aliunde.( 131) At all of 
their meetings the law makes it the duty of the county au¬ 
ditor to attend and keep a record of their proceedings, and 
he is authorized to administer all oaths necessary to be ad¬ 
ministered in business before the board. (132) The sheriff 
of the county shall also attend the meeting of such board, 
either in person or by deputy, and execute their orders.(131) 

(130) 24 Ind. 514; 28 Ind. 161. (131) 28 Ind. 161. (132) 1 Res. by G. & 
H., p. 249, sec. 7. 

8 





100 


THE BOARD OF COMMISSIONERS. 


CHAPTER VI. 

THEIR JURISDICTION. 

As soon as the board is organized it becomes a body cor¬ 
porate and politic, by the name and style of the Board of 

Commissioners of the county of-, and as such, and 

in such name may prosecute and defend suits, and have all 
other duties, rights and powers incident to a corporation. 
The majority of the members of the board constitute a quo¬ 
rum to do business.(135) As the law makes the board a 
corporation, we shall inquire into the nature, character and 
power of a corporation. 

A corporation is an artificial being, invisible, intangible 
and existing only in contemplation of law; or it may be 
defined “ a franchise possessed by one or more individuals 
who subsist as a body politic under a special denomination, 
and vested by the policy of the law with the capacity of 
perpetual succession, and acting in several respects, however 
numerous the association may be, as a single individual. 

(134) 

The Board of Commissioners is what is called a public 
corporation, and was created by the act of our State 
legislature for political purposes, and they possess sub¬ 
ordinate legislative powers to be exercised for local pur¬ 
poses connected with the public good, and their power 
is subject to the control of the legislature of the State. 
In legal contemplation the Board of Commissioners is the 
county; they are sued for the county debts and have 
full control of the finances of the county.(135) They pos¬ 
sess no power or authority except what is given them by 
law. The acts of the legislature are to the Board of Com¬ 
missioners what the constitution of the State is to our legis¬ 
latures ; and all acts of the board not authorized by law is 
absolutely void. (136) They have the authority to make 
such rules for the transaction of business as they may deem 

(134) 2 Kent, 267; 4 Wheaton’s U. S. R. 636. (135) 1 G. & H., p. 247. 

(135) 4 Ind. 315; 16 Ind. 29. (136) 4 Blackf. 241. 




THEIR JURISDICTION. 


101 


proper and right; and in the trial of causes that may come 
before them, they shall be governed as far as practicable by 
the rules of conducting business in the circuit court.(136) 
They have the power to preserve order and to punish con¬ 
tempt by fine not exceeding three dollars, or imprisonment 
not exceeding twenty-four hours. Each member compos¬ 
ing the board is authorized by law to administer all oaths 
that may be necessary to enable them to perform all busi¬ 
ness required of them under the law. They may enforce 
obedience to all orders made by them by attachment or other 
compulsory process; and where fines are assessed by them 
execution shall be issued thereon, and the same is collected 
by the sheriff and paid over as other fines are collected and 
paid. (137) Under this statute they have the right to im¬ 
pose a fine on the county auditor, or sheriff, or any subor¬ 
dinate officer or their deputies, for neglect or refusal to 
obey their orders. They can fine witnesses who have 
been subpoenaed and refuse to attend, or who are present 
in court, and refuse to be sworn, or for any other miscon¬ 
duct amounting to contempt. When a fine is assessed by 
the board against any one for contempt, they must cause 
the same to be entered up in the form of a judgment, and 
sign up the same as a part of their record; when this is 
done the law makes it the duty of the county auditor to 
issue an execution on the same to the sheriff of the county, 
commanding him to make the fine and costs out of the 
property of the defendant. The record may be in the fol¬ 
lowing form: 

State of Indiana 1 

vs. V Attachment for Contempt. 

James Ray. j 

A subpoena having been issued by the auditor of this 
county for the said James Ray, as a witness to give testi¬ 
mony in the case of John Smith vs. Richard Roe, now 
pending before this board, and it appearing to the satisfac¬ 
tion of the board that said subpoena was duly served on the 
said James Ray, on the 1st day of January, 1871, and that 

(136) 1 G. & H., p. 249. (137) 1 G. & H., p. 249. 



102 


THE BOARD OF COMMISSIONERS'. 


he has neglected to attend as such witness, an attachment 
is therefore this day issued against him, returnable forth¬ 
with. And afterwards, to-wit, in the afternoon of this 
day the sheriff having returned said writ of attachment 
with the body of the said James Ray; and the said James 
now failing to purge himself of said contempt, the board, 
after hearing the evidence, finds the premises to be true as 
above set forth. It is therefore considered and adjudged 
that for said contempt, in disobeying said subpoena, the 
said James Ray make his fine to the State of Indiana in 
the sum of three dollars, and that he pay the cost of this 
prosecution, and that he stand committed until the fine and 
costs are paid or replevied. 



The board of county commissioners is an inferior court, 
of special and limited statutory jurisdiction. It must ap¬ 
pear therefore upon the face of its proceedings that its ac¬ 
tion was conformable to the requisitions of the statute gov¬ 
erning it. When a court of limited jurisdiction exceeds its 
rightful powers, the whole proceeding is coram non judice 
and void; and its judgments and orders made under such 
circumstances are regarded as nullities. They are not only 
voidable, but void.(137) 

The law is well settled that where a statutory power is 
conferred upon a court of inferior jurisdiction, and a mode 
of executing those powers is prescribed, the course pointed 
out must be strictly pursued, or the acts of such court will 
be coram non judice and void.(138) But when such court 
has been intrusted with the exercise of discretionary power, 
and the acts done are within the power conferred, and have 
been performed in good faith, no court possesses the power 
to interfere with or control such discretion.(139) And in 
the case of Cable vs. The State, our supreme court held 
that the record of a court of limited jurisdiction must 

(137) 4 Black. 476; iolnd. 358. (138) 34 Ind. 115; 5 Black.462; 27 Ind. 
2 33 i 133 ( 139 ) 34 Ind. 115. 



JURISDICTION. 


103 


affirmatively show such a state of case as warrants the ex¬ 
ercise of jurisdiction.(140) But in the case of the hoard 
of commissioners of Madison county vs. Brown, they held 
that the record need not disclose the fact that the board of 
commissioners of that county had been called together in 
special session, but that the fact might be shown aliunde , or 
by other evidence.(141) The boards of county commis¬ 
sioners of this State are for certain purposes judicial tribu- 
nals.(142) But they are something more than a court; 
they possess legislative powers, or a power to enact laws 
in certain cases for the county in which they preside.(148) 
But this legislative power should only be exercised when 
clearly authorized by the statute. 

The statute confers upon them jurisdiction of the follow¬ 
ing cases: 

1. To make orders respecting the property of the 
county in conformity to law. Under this section they can 
control and direct how the property of the county shall be 
used, and how cared for.(144) 

2. To sell the public grounds of the county upon which 
the public buildings are situated, and to purchase in lieu 
thereof, in the name of the county, other grounds in the 
county seat, on which such buildings shall be erected; to 
purchase other lands for the enlargement of the public 
square, and to take care of and preserve such property. 
(145) But to do this they must give six days’ notice of 
the time, terms and place of sale, and a description of the 
property to be sold.(146) 

3. To allow all accounts chargeable against the county, 
not otherwise provided for, and to direct the raising of 
such sums as may be necessary to defray all county ex¬ 
penses. But no allowance shall be made by such county 
commissioners, unless the claimant shall file with such com¬ 
missioners a detailed statement of the items and date of 
charges, nor until such competent proof is furnished in 


(140) 27 Ind. 133. (141) 28 Ind. 161. (142) 29 Ind. 170; 5 Black. 325; 

id. 462; 22 Ind. 187. (143) 29 Ind. 170. {144) 1 G. & H. p. 250. (146) 

Act approved December 23, 1872. 



104 


THE BOARD OF COMMISSIONERS, 


favor of such claim, unless the board knows that the ac¬ 
count is just.(145) 

4. They shall cause a court-house, jail, public offices for 
the clerk, the circuit court, the county recorder, the county 
treasurer and county sheriff to be erected and furnished, 
where the same has not been done; and must keep all public 
buildings of the county in repair; and such offices erected for 
county purposes must be made fire-proof if practicable. And 
to enable them to erect, complete or repair the court¬ 
house, jail, or other county building, or whenever they 
wish to fund any debt incurred for county purposes, and 
the revenue afforded by reasonable taxation is insufficient 
to do the same, the county commissioners may borrow for 
that purpose any sum of money not exceeding one per 
centum of the assessed valuation of the real and personal 
property of the county, and issue bonds therefor in 
amounts of not less than twenty-five dollars each, and 
bearing a rate of interest not exceeding the legal rate in 
the State or territory where the same are negotiated, not 
exceeding the rate of ten per cent, per annum. But no 
second or subsequent loan shall be made or authorized by 
said commissioners so long as any former loan made 
after May 4, 1869, shall remain outstanding and unpaid. 
(146) Such bonds may be sold at any place within the 
United States, but at no greater discount than 8 per cent., 
and must be in form substantially as follows: 

State of Indiana, County of-, wiR pay to the 

bearer-years from the date hereof, the sum of- 

dollars and-cents, with interest thereon at the rate of 

- per cent., payable annually at-, in the State 

of-, on-day of-, in each year. This- 

day of-, A. D. 18—. 

s.) 

B. y Commissioners - County . 

- K.J 

(145) I G. & H. p. 250, sec. 2 ; id. p. 252 sec. 24; 35 Ind. 70. Under 
these sections a statement of the claim, though informal, will be sufficient if it 
advise the board of the nature of the claim with certainty, so as to prevent 
another application on the same claim. 8 Ind. 504. (146) I G. & H. p. 251 j 

Act of 1869, p. 7 . See also act of 1871, p. 42, sec. 44 .. 










JURISDICTION. 105 

To each of these the auditor of the proper county shall 
attach his certificate in the following form: 

I, —-, County Auditor, do hereby certify that the 

annexed bond was issued to the County Treasurer this- 

day of-, A. JD. 18—. In testimony whereof I have 

hereunto set my hand and affixed the seal of said Board of 
County Commissioners, this-day of-, 18—. 

[seal.] J. T., County Auditor. 

The county auditor must deliver these bonds to the 
county treasurer, and charge him therewith upon the 
proper books in his office, and said bonds are deemed as a 
part of the funds of the county in the hands of the treas¬ 
urer thereof, and the treasurer will be held liable for the 
same upon his official bond, the same as he is held for 
other funds or securities belonging to the county. These 
bonds are negotiable by endorsement, so as to vest the 
property absolutely in each and every endorsee successively. 
After these bonds have been sold by the treasurer, the 
commissioners must make a levy of not less than one-tenth 
of one per cent, on the taxable property of such county, 
and cause the same to be placed upon the tax duplicate, to 
be properly designated by the auditor in a separate column 
for the current and succeeding year. And when such tax is 
collected by the treasurer, the money shall be invested in 
the bbnds aforesaid, or other State and county securities, 
which shall constitute a sinking fund for the liquidation of 
debts created by the issuing of such bonds. They must 
also provide for the payment of the annual interest that 
will accrue on these bonds, and all other indebtedness of 
the county. For this purpose they must make a distinct, 
and special levy, and cause the same to be placed in a sepa¬ 
rate column on the tax duplicate of the county, and when 
the same is collected it must be applied to the payment of 
the interest on the bonds and other indebtedness of the 
county, and if there is a balance remaining after discharging 
the interest on the entire indebtedness of the county, it 
must be applied on the principal of such indebtedness. If 
the county treasurer shall fail to sell the bonds delivered to 





106 


THE BOARD OF COMMISSIONERS. 


him, from any reason, he must, in a reasonable time, or 
within the time fixed by the board of commissioners, re¬ 
turn the same to the county auditor, who must give him 
credit for the same upon his books; and at the next ses¬ 
sion following, the board must cancel or otherwise destroy 
the bonds so returned, in the presence of the auditor and 
treasurer of the county, and cause an entry of the fact to 
be entered in the order book.(147) 

In proceeding under this statute the board must follow its 
directions, and if they make a material deviation from the 
course marked out by the law, their acts will be null and 
void, and the collection of the tax enjoined by the supe¬ 
rior courts. 

In the case of English and others vs. Smock and others, 
our supreme court held that when the board made the in¬ 
terest on the bonds payable semi-annually, when the law 
made it payable annually, that their acts were coran non 
judice and void. (146) 

But they cannot make any contract for the construction of 
any court-house, jail or other county or township building, 
or bridge, fence or monument, until a plan and specifica¬ 
tions have been adopted by such board, and such plan and 
specifications have been deposited in the office of the 
auditor, and open to the inspection of the people of such 
county; and all contracts attempted to be made in violation 
of the above requirements, will be null and void. After 
this is done they must advertise the letting of the contract 
(and request bids) in at least one newspaper of general cir¬ 
culation in said county, and by posting up notices of such 
building, with the time, place and terms of the same with 
♦reference to plan and specifications. But if the cost of the 
fence or bridge to be built does not exceed in cost five hun¬ 
dred dollars, the contract can be let without advertisement. 

After they have advertised the letting of any court¬ 
house, jail or other county or township building, or bridge, 
fence or monument, on the day fixed for such letting they 


(H 6 ) 34 lad. 115. (147) 1 G. & H. secs. 16, 17, 18, 19, 20, 21, 22, 23, 
FP- 2 52 , 253. 



JURISDICTION. 


107 


must let the same to the lowest responsible bidder, on the 
terms in notice mentioned; and they must require the con¬ 
tractor to give bond in a penalty of at least one-fourth the 
value of such work, to perform the labor according to the 
specifications. If the contractor can give bond he must be 
considered responsible.(147) 

5. They must, at their June session in each year, assess 
the necessary amount of taxes on each one hundred dollars’ 
worth of property, in their county to defray county ex¬ 
penses'^) 

6. They must approve the bond of the county auditor of 
their county, which must be in the sum of two thousand 
dollars. But before they can do this the bond must have 
been executed by the principal and sureties, and the execu¬ 
tion of the same duly acknowledged before some officer au¬ 
thorized to take acknowledgment of deeds by the principal 
and sureties executing the same. Said acknowledgment 
must be duly certified on the bond by the officer taking the 
same, as in other causes.(148) 

7. They must, after the same has been executed by the 
principal and not less than four sureties, in a penalty not 
less than double the amount of money that may come into 
his hands at any time during his term of office; and after 
the execution of the same has been acknowledged by all 
the parties thereto before some officer authorized to take 
acknowledgment of deeds and the acknowledgment duly 
certified on the back of the bond, approve the bond of the 
county treasurer. (149) 

8. They may remove any delinquent county treasurer of 
their county from office after suit has been commenced on 
his official bond.(150) 

9. They must make a complete settlement with the coun¬ 
ty treasurer of their county at their June session in each 
year; in which settlement the treasurer of the county must 
make a full statement of all monies that has come into his 

(147) 1 G. & H., p. 68, sec. 1. (148) 1 G. & H., 122; Act Special Session 

1865, 178. (149) Act of 1865, Reg. Session, p. 62; Act of Special Session 

of 1865, p. 178. (150) 1 G. & H., p. 642, sec. 12. (147) Act approved Dec. 

23, 1872. 



108 


THE BOARD OP COMMISSIONERS. 


hands during the year, the amount on hand, the amount 
paid out by him, and in fact a full history of his official 
business during the fiscal year ending on the first Monday 
of June.(151) 

10. They may take possession of and control all plank, 
gravel or Macadamized roads in their county, whenever the 
same shall have been abandoned and suffered to go out of 
repair by the corporation which constructed them. And 
when this is done they must annex said road for repairs to 
contiguous appropriated road districts of their county.(152) 

11. They must, at their June session in each year, make 
a fair and accurate statement of the receipts and expendi¬ 
tures of the preceding year, and must have the same posted 
at the door of the court-house and in two other public places 
in the county, and publish said notice in some newspaper 
in their county, if any is published therein. (153) 

12. On application made to them by any one, they may 
exempt any person from paying poll tax in their county on 
sufficient cause shown of inability to pay the same.(154) 

13. "Whenever public convenience requires the erection 
or repair of any bridge across any stream forming the boun¬ 
dary line between two counties, upon application to the 
Board of County Commissioners of either county, such 
Board of County Commissioners may, if they think it ex¬ 
pedient, declare their willingness to aid in the erection or 
repair of such bridge by resolution or order, and shall cause 
notice thereof to be given to the Board of County Com¬ 
missioners of the other county interested therein, and when¬ 
ever it may be ascertained that the Board of County Com¬ 
missioners of both counties have made such order or reso¬ 
lution, such Board of County Commissioners shall, by con¬ 
current resolution, cause a survey and estimates to be made, 
submitting plans and specifications therewith by some com¬ 
petent person, to be presented to their respective Boards of 
Commissioners at some specified time and place at or near 
the site of such contemplated bridge, when such Boards of 
Comity Commissioners shall meet in joint session to esti- 

(151) 1 G. & H., p. 642, sec. 13. (152) 1 G. &H., p. 250, bottom. (153) 1 
G. & H., p. 253, sec. 29. (154) 1 G. & H., p. 253, sec. 30. 


JURISDICTION. 


109 


mate and determine the kind of bridge which shall be erect¬ 
ed, and the manner and time when payments shall be made 
for the repair or erection of such bridge. 

It shall be the duty of said Boards of County Commis¬ 
sioners, while in joint session, to appoint one or more per¬ 
sons as superintendents, who shall have full control and 
supervision of the erection and repair of said bridge, sub¬ 
ject, however, to such regulations as such Boards of County 
Commissioners may determine upon. 

It shall be the duty of such Boards of County Commis¬ 
sioners, in joint session, to make such appropriation for 
their respective counties as will make an equitable propor¬ 
tion to each county of the whole cost of construction or 
repair of such bridge, and such appropriations shall be in 
proportion to the taxable property of the two counties; and 
all taxes hereafter levied for the erection, repair or purchase 
of any such bridge, so situated, shall be levied in accord¬ 
ance with this act. 

The said boards may require bond and security from such 
agent or superintendent, or from any contractor or contrac¬ 
tors, which may be made payable to both or either of such 
boards. 

Each county shall be regarded as the owner of an inter¬ 
est in any bridge erected in pursuance of this act, and each 
shall have a voice in regulating the use thereof.(153) 

All their joint proceedings under this act should be re¬ 
corded in a book to be kept by the commissioners of one 
of the counties, or perhaps the better way would be to make 
a duplicate record, so that each board would at all times be 
in possession of a copy. The record should be signed by 
all the commissioners who composed the joint session. 

14. The Trustees of the different townships of the county 
must at their March sessions of each year, and as 
much oftener as the board may require,-make a report in 
writing for the fiscal year then ending, and their reports 
must show clearly and separately the following facts: 

1st. The amount of special school revenue, and of school 


(153) Acts of Special Session of 1869, p. 27, sec. 28. 



110 


THE BOARD OF COMMISSIONERS. 


revenue for tuition, on band at the commencement of the 
year then ending. 

2d. The amount of each kind of revenue received within 
the year, giving the amount of tuition revenue received at 
each semi-annual appointment thereof. 

3d. The amount of each kind of revenue paid out and 
expended within the year. 

4th. The amount of each kind of revenue on hand at the 
date of said report, to be carried to the new account, and 
shall, with said report, present and file a detailed account 
current of the receipts and payments for the year, and sup¬ 
port the same by proper vouchers, which report and account 
current shall each be duly verified by affidavit; and when 
the said County Commissioners are satisfied that said report 
is full, accurate and right,in all respects, and that said account 
is just and true, they shall allow and pass the same, which 
shall have the effect to credit the trustees for the expendi¬ 
tures. And, upon failure of the trustee to discharge any 
of the duties required by him, relative to schools and school 
revenues, the Board of County Commissioners shall cause 
suit to be instituted against him, on his official bond, and, 
in case of recovery against him, the court rendering the 
judgment shall assess upon the amount thereof ten per cent, 
damages, to be included in said judgment.(154) 

They must, also, at the same time, make a complete re¬ 
port of the receipts and expenditures of his township dur¬ 
ing the preceding year, which report must clearly exhibit 
the amount received and expended on account of township, 
road, school and other expenses, as well as the proper bal¬ 
ance remaining on hands.(155) 

15. The County Auditors and County Treasurers shall 
annually report in writing to the Board of County Commis¬ 
sioners of the respective counties, at the June session of 
said board, relative to the school fund held in trust by said 
counties, distinguishing in said reports between the Con¬ 
gressional Township and Common School funds, indicating 
the amount thereof, the additions to them within the cur- 


(154) Act of Regular Session of 1865, p. 5. (155) 1 G. & H., p. 638, s. 11. 



JURISDICTION. 


Ill 


rent year then ending, the sources from whence such addi¬ 
tions are derived, the condition of them as to their safety, 
giving the amount thereof safely invested, unsafely invest¬ 
ed, and uninvested, and lost, at the date of said report, giv¬ 
ing also the amount of interest collected upon said funds 
within the year then ending, and the amount then due and 
unpaid. 

Sec. 104. The Board of County Commissioners shall 
annually, at their June session, in [the] presence of the Au¬ 
ditor and Treasurer, examine said reports, the accounts, and 
proceedings of said officers, in relation to said funds, and 
the revenue derived from them. They shall compare with 
said reports, the cash, the notes, mortgages, records and 
books of said offices, with a view to ascertain the amount 
of said funds and their safety, and do whatever may be nec¬ 
essary to secure their preservation and the prompt payment 
of the annual interest thereon as the same becomes due, 
and make up to said funds losses which have accrued or 
may accrue. 

Sec. 105. The County Commissioners at said session 
shall make out for their respective counties, a report in wri¬ 
ting of the result of such examination, showing: 

1st. The amounts of said funds at the close of the last 
year. 

2d. Amount added from sale of land within the year. 

3d. The number of acres of unsold Congressional Town¬ 
ship School lands, and the approximate value thereof. 

4th. The amount added from fines and forfeitures. 

5th. The amount added by the Commissioners of the 
Sinking Fund. 

6th. The amount added from all other sources. 

7th. The total amount of the funds. 

8th. The amount refunded within the year. 

9th. The amount re-loaned within the year. 

10th. The amount safely invested. 

11th. The amount unsafely invested. 

12th. The amount uninvested at date of report. 

13th. Amount of fund lost since 1842. 

14tli. Amount of interest collected within the year. 


112 


THE BOARD OR COMMISSIONERS. 


15th. Amount of interest delinquent. 

And in said report the Commissioners shall distinguish 
between the Congressional Township Fund and the Com¬ 
mon School Fund, and in their account of the interest or 
revenues derived from said fund they shall observe the same 
distinction. 

Such report shall be entered on the records of said board, 
and copies thereof, signed by the members of the board, the 
auditor and treasurer, shall be transmitted to the Auditor 
of State and the Superintendent of Public Instruction.(156) 

16. They may at any session examine the books, papers 
and accounts of any trustee relative to school; and for this 
purpose they may by subpoena summon any trustee before 
them, and require the production of such books, papers 
and accounts, three days’ notice of the time and place to 
produce them being given. And on inspection, if they 
lind that such books have been imperfectly kept, the board 
may correct them, and if fraud appears, they must remove 
the person guilty thereof. (157) 

17. They must conform the boundaries of their civil 
township to those of Congressional so far as practicable 
to do so.(157) 

18. On the presentation of the certificate and return 
of any township trustee of their county, or a petition 
signed by a majority of the voters of any congressional 
township by the auditor of their county, they must, after 
satisfying themselves that the requirements of the law had 
been substantially complied with, direct the sale of any 
land belonging to the Congressional township fund in their 
county, the sale to be conducted according to law.(158) 

19. That whenever there has been, or shall be de¬ 
stroyed, all or any of the books, pamphlets, papers, records 
or other writings, belonging to any county in this State, or 
of any court of record held therein, it shall be the duty of 
the auditor of such county forthwith thereafter to notify 
the members of the board of commissioners of such 

(156) Act of Regular Session of 1865, pp. 24 and 25. (157) Act Reg. Ses. 

1865, 32, secs. 141, 142, 143 and also 148. (*58) Act. Ses. of 1865, pp. 16, 

17, 18. 



JURISDICTION. 


113 


county to meet at such time and place as he shall designate, 
and they shall so meet accordingly; and may, during the 
twelve months from thence next ensuing, meet from time to 
time on their own adjournments, if such meetings shall in 
their opinion be rendered necessary by the destruction of 
the records aforesaid. 

Such board, when so met, shall, on proof made before 
them, cause to be made out and certified by the auditor of 
such county, a list of all books, pamphlets documents, re¬ 
cords, maps and other papers, whether written or printed, 
which have been so destroyed, which had before such time 
been furnished such county by the State government by 
virtue of any law or joint resolution of this State, which 
certified list such auditor shall forthwith forward to the 
Governor of the State. 

It shall be the duty of the Governor, immediately on the 
receipt of said certified list, to notify the officer or officers 
of State, whose duty it may be to furnish to the counties 
pamphlets, books, documents, maps, records and other 
papers, whether written or printed, of the fact of such de¬ 
struction ; and it shall be the duty of such officer or officers 
immediately thereafter to furnish to such county all such 
pamphlets, books, documents, maps, records and other 
papers, whether written or printed, as may be so certified 
to have been destroyed, in the same manner as if such 
county had never received the same. 

If the records required to be kept in the recorder’s 
office of any county in this State have been or shall be de¬ 
stroyed in whole or in part, it shall be the duty of such re¬ 
corder forthwith thereafter to procure a book or books, in 
which he shall from time to time, and in the order in 
which they may be presented, record such deeds and other 
instruments of writing as had been previously recorded in 
such office, and the record whereof has been destroyed; 
and he shall also immediately after the record of such deed 
or other instrument, record the endorsement thereon made 
by the recorder, of the time when said deed was originally 
filed in such office for record: and such record shall have 


114 THE BOARD OF COMMISSIONERS. 

the same force and effect as the original record would 
have had if the same had not been destroyed. 

Such recorder shall also procure another book or books 
in which he shall record, in the order in which the same 
may be presented to him, all such proof of the execution, 
acknowledgment, contents, destruction and recording of 
any deed or other instrument before that time recorded in 
such office, the record whereof has been destroyed, as may 
be made before him in the manner hereinafter prescribed; 
which said book or books, together with the book or books 
required in the last preceding section, shall be by such re¬ 
corder indexed in the same manner as records of deeds 
may at such time be required to be indexed by existing 
laws. 

Whenever any person having an interest in perpetuating 
the evidence of any deed or other instrument in writing, 
proper to be recorded, the record whereof in such office 
has been destroyed, will make oath before such recorder 
that he has such interest,—that such deed or other instru¬ 
ment has been previously recorded in such office, and that 
though he has made diligent search for the original of such 
deed or other instrument, he has been unable to find the 
same, such recorder shall at the instance of such person, 
after first recording such oath, and causing such affiant to 
sign such record, proceed to take such proof under oath as 
may be produced before him, recording the same in such 
book, and causing the witness to sign such record, to 
which he shall also add his certificate of their having been 
duly sworn in the premises. 

Such proof shall consist of evidence of the deed and 
execution and acknowledgement of such deed or other in¬ 
strument—of the date and contents of the same,—of the 
fact that the same had been previously recorded in such 
office, and the time when it was so recorded,, or deposited 
for record, as nearly as the witness or witnesses may be 
able to state. But such recorder, before examining any 
witness, shall require him to state on oath, that he has no 
interest direct or indirect in perpetuating such testimony, 
which, statement shall be incorporated in such record. 


JURISDICTION. 


115 


Sucli recorder shall be authorized to administer all oaths 
required by this and the last preceding section of this act, 
and may himself be sworn as a witness by any person au¬ 
thorized to administer oaths. 

In all suits in any court in this State, it shall be compe¬ 
tent for either party to read in evidence such record of 
testimony, or a copy thereof, certified by the recorder of 
such county, to be a full copy of all the testimony relative 
to such deed as it may have relation to, as may be con¬ 
tained in such record; and such record, or such copy 
thereof, when so read in evidence, shall have the same force 
and effect as if the witness or witnesses had been sworn to 
the same facts on the trial of such cause,—and may be ex¬ 
cluded, rebutted or impeached, in the same manner that 
such testimony might have been excluded, rebutted or im¬ 
peached, if sworn to by such witness or witnesses on such 
trial. 

If the records or files of the circuit, probate, common 
pleas, commissioners or other inferior court of record in 
any county in this State, or the papers on file in the office 
of the clerks of either of such courts, or the bonds, notes, 
or other papers belonging or properly filed in the office of 
the treasurer, auditor, assessor, or other officer of any 
county in this State or any, or either of them, have been,, 
or shall be in whole or in part destroyed, the board of 
commissioners when they shall have met as in the first sec¬ 
tion of this act required, shall appoint a commissioner, 
who after having taken an oath of office as such commis¬ 
sioner, shall forthwith proceed to discharge the duties 
hereinafter required of him 

The said commissioner may, if he deems the same neces¬ 
sary, employ a clerk; and such clerk, before entering upon 
the discharge of his duties, shall take an oath of office. 
Such commissioner shall also procure a sufficient number 
of substantial record books, in which shall be recorded at 
length the proceedings had before such commissioner here¬ 
inafter authorized, keeping in separate books the record of 
business appertaining to the different courts, and the offices 


116 


THE BOARD OF COMMISSIONERS. 


of the different officers of such county. Such commissioner 
shall have power to administer oaths in all cases where tes¬ 
timony is required to be taken before him. 

If the Board of Commissioners of such county shall at 
any time become satisfied that such commissioner is incom¬ 
petent, or unreasonably delays or neglects the duties de¬ 
volved upon him by this act, they may, by order of record, 
remove him from such office and appoint a successor, and 
from such order of removal there shall be allowed no ap¬ 
peal. And such Board of Commissioners may, at any time 
after twelve months from the time when such commissioner 
enters upon the duties of his office, require him, within 
twenty days thereafter, to close up the business of his com¬ 
mission; after the expiration of which twenty days the 
duties of his office shall cease. But such Board of Com¬ 
missioners may at any time thereafter authorize a resump¬ 
tion of said duties for a limited period. 

Such commissioner, before entering upon the duties of 
his office, shall give twenty days’ notice of his appointment, 
and of the time and place when and where he will com¬ 
mence discharging such duties, by publication in some news¬ 
paper of general circulation, printed and published in such 
county, if there be one, and by posting up written notices 
in each of the townships of such county. Such commis¬ 
sioner may adjourn from time to time, as the business before 
him may require; but after an adjournment without day, 
he shall not again resume the duties of such office without 
an order of the Board of Commissioners of such county 
shall authorize him so to do. 

Such commissioner shall have power to administer all 
oaths necessary and proper to be taken before him—to issue 
subpoenas for witnesses, and compel their attendance by 
attachment—punish contempts by fine, and issue execution 
therefor—tax costs, and issue fee bills therefor; and such 
writs and subpoenas shall be served by the sheriffs of the 
several counties in this State, who, together with witnesses, 
shall receive therefor the same compensation which may be 
allowed by law for the same service or attendance in the 


JURISDICTION. 


117 


circuit court, to be taxed against the party making sucli 
cost.” 

Such commissioner shall, if he employ a clerk, be enti¬ 
tled to receive, as compensation, a sum to be allowed by the 
Board of Commissioners, not exceeding three dollars per 
day for the time actually employed; and if he acts as his own 
clerk, a like compensation of not exceeding four dollars per 
day. Such clerk, if one be employed, shall be paid not ex¬ 
ceeding two dollars per day. The recorder of any such 
county shall be entitled to charge half the usual fees for 
recording, to be paid by the person for whom the same is 
done. All expenses of books, stationery and per diem, shall 
be paid by such county. 

Whenever in any county both the assessment rolls and du¬ 
plicates shall be destroyed, the Board of Commissioners of 
such county shall cause new assessments and appraisements 
to be made out, in the same manner and under the same 
regulations that the original assessments and appraisements 
were made—and all such proceedings shall be thereafter had 
as may be necessary and proper under existing laws, to en¬ 
able the treasurer to collect all taxes due in such county. 

All persons charged with taxes on such duplicate made 
out as in the last preceding section is required, shall be lia¬ 
ble to pay the same, unless such person shall produce a 
proper receipt for the same, or shall satisfy, by competent 
proof, such Treasurer, or the Board of Commissioners of 
such county, that he has paid the same. 

20. That whenever twelve freeholders of any county shall 
sign and present to the Board of County Commissioners in 
session, a petition setting forth that a public highway (de¬ 
scribing it) in their road district, or districts, township or 
townships, is situated upon, contiguous to, or near by a 
county line, and has not been worked for some length of 
time in consequence of a difference of opinion as to whose 
duty it was to work such road. 

When such petition shall be presented to the Board of 
County Commissioners, such board shall appoint two free¬ 
holders of the county, not belonging to the road district 
where such road is required to be worked, who shall em- 


118 


THE BOARD OF COMMISSIONERS'. 


ploy the county surveyor to perform the duties required by 
this act. 

It shall be the duty of the county auditor of said county 
to immediately, by letter, give notice through the auditor, 
to the other county board upon whose border said road is 
situated, of the filing of such petition, sending a copy of 
the same, and also of the appointment of such commission¬ 
ers, referring to this act for authority for so doing; where¬ 
upon it shall be the duty of the county board thus notified, 
at their first session after, to appoint a like two commission¬ 
ers, and the four persons so appointed and the county sur¬ 
veyor shall meet at the time and place designated by such 
Board of County Commissioners at some convenient point 
along the line of said road as described in such petition, 
who having been first sworn according to law, shall proceed 
to carefully examine the condition and location of said road, 
and if practicable shall locate such road upon the county 
line, fixing the center of such road upon the county line 
having first surveyed the whole line of road. 

Such commissioners shall, as nearly as possible, make an 
equal division of such road, taking into consideration the 
amount of labor presumed to be necessary to keep such road 
in repair, as well as the length thereof, and mark the spot 
by fixing a stone firmly in the ground, and shall determine 
which of the respective counties shall each work the respec¬ 
tive divisions thus designated. 

Such commissioners shall make out a report of the pro¬ 
ceedings, describiug by metes and bounds the portion of the 
road to be worked by each county, a copy of which shall 
be duly transmitted to the Board of County Commissioners 
of each of the two counties, and shall be by them entered 
upon record, and they shall notify the trustees of the town¬ 
ship or townships in interest, and furnish them with a copy 
of the report of said commissioners, that it is hereby made 
their duty to open and work such road as other county roads 
are worked, as the law requires. 

The county surveyor, when met with such commission¬ 
ers, is hereby authorized to act with said four commission¬ 
ers in locating and marking the place that each respective 


JURISDICTION, 


119 


county shall work: Provided , That whenever the Board of 
County Commissioners of either county shall refuse or neg¬ 
lect to appoint commissioners to act upon the petition filed 
according to the provisions of this act, the two commission¬ 
ers appointed by the other county, in connection with the 
county surveyor, shall proceed to discharge the duties re¬ 
quired of the four commissioners, and their action in the 
premises shall have the same force and effect and be equally 
binding as the action of the four commissioners. 

Such commissioners and surveyor shall each receive for 
his services one dollar and fifty cents per day for every day 
they are necessarily employed in performing the duties here¬ 
in required, and the surveyor his lawful fees, to be paid out 
of the county treasury of the respective counties. 


PETITION. 


To the Honorable Board of Commissioners of Vermillion county: 

We, the undersigned, freeholders of Vermillion county, 
Indiana, would represent to your honorable board that a 
certain highway situated on the boundary line between the 
counties of Vigo and Vermillion, in Road District No. —, 
of which we are residents, in Clinton township, in said 
county, which is known as the Shue road, which commences 
at the south-west corner of section 33, township 14, range 
10 west, running thence east two miles, has not been worked 
for two years in consequence of a difference of opinion as 
to whose duty it was to work said road, whether the citi¬ 
zens of the county of Vigo or of the county of Vermillion. 
We therefore ask your honors to appoint two commission¬ 
ers to make an equal division of said road, setting off* to 
each county their respective shares for work. And we will 
ever pray. 


A, 

B, 

H, 

c, 

I, 

B, 

J, 

E, 

K, 

F, 

L, 

G, 

M. 


120 


THE BOARD OF COMMISSIONERS. 


On presentation of this petition introduce a witness, or an 
affidavit of one, that the petitioners are freeholders, and 
that they reside in the road district mentioned in the peti¬ 
tion, thereupon the board will make the appointment. 

21. That the auditors of the several counties of this State 
be, and they are hereby, required to examine all, or so many 
of the books, papers and records on file in their offices, re¬ 
lating to the school funds, Common and Congressional, as 
shall enable them to ascertain the amount of said funds held 
in trust by their several counties. 

The amounts thus ascertained shall be, by said auditors, 
submitted to the Board of County Commissioners for ap¬ 
proval and when so approved by the board shall be spread 
on the records of said Commissioners’ Court, and the audi¬ 
tor shall forward a duly certified copy thereof to the Super¬ 
intendent of Public Instruction on or before the third Mon¬ 
day in June, 1866, for his approval, and when approved by 
the Superintendent of Public Instruction, he shall cause the 
same to be recorded in a book kept for that purpose in his 
office, and when so recorded, he shall notify the county au¬ 
ditors making such reports of his approval; and said state¬ 
ments, when so approved, shall be taken as conclusive evi¬ 
dence of the facts therein contained. 

The auditors of the several counties, for their services in 
making said investigation and reports, shall receive such 
compensation for their services as they are allowed for sim¬ 
ilar services, to be allowed by the Board of County Com¬ 
missioners and paid out of the county treasury. (15 9) 

The assessors provided for in section 2 of the gravel road 
law, shall receive, as a compensation for their services, tw r o 
dollars and fifty cents a day for the time actually em¬ 
ployed, to be paid out of the county treasury, on the order 
of the board of county commissioners. 

JSTo road made under said act shall be less than five miles 
in length, and shall be commenced within two years from 
the day of permission to organize, and shall be completed 
within six years, and said companies shall have power to 


(159) Act of Special Session of 1865, p. 144. 



JURISDICTION. 


121 


construct branch roads of not less than two miles in length, 
by petition, as provided in the first section of the above re¬ 
cited act, and where companies have in their organizations 
contemplated branch roads, and complied with all the re¬ 
quirements of the first section of the above recited act, 
they shall be enabled to complete the same under the pro¬ 
visions of the above recited act: Provided , however , That all 
acts of companies heretofore organized under said law made 
and done, and orders entered upon their books for the pur¬ 
pose of establishing and constructing branch roads, be and 
the same are hereby legalized.(158) 

The act approved December 2,1865, provides that in all 
cases in which any gravel road company, organized under 
existing laws of the State, may have completed three- 
fourths of the entire line of road at the expiration of the 
time allowed them by law for completing the same, such 
company shall be entitled one year in addition to the time 
now allowed to complete their said roads.(159) 

82. That a grand jury shall consist of twelve members, 
all of whom shall be reputable freeholders or householders 
of the proper county, and taxable therein. 

The board of commissioners of each county at their first 
regular session in each year, shall select from the tax du¬ 
plicate of the preceding year, the names of sixty persons 
having the requisite qualifications, which shall be written 
on separate ballots, and placed in a box prepared for that 
purpose. 

The names so selected shall be divided equally as nearly 
as possible among the civil townships of the county. 

The clerk of the circuit court, in the presence of said 
board, shall draw by lot from said box the names of twelve 
persons, to serve as grand jurors. 

In drawing said jurors, not more than one shall be drawn 
for the same township, if there be so many in the county; 
and if not, at least one shall be drawn from each township, 
after which the clerk shall continue to draw, observing the 
same rule, until the panel is filled. 


(158) Act of 1869, p. 73; Act of 1865, p.*99. (159) Special act 1865^. 132. 



122 


THE BOARD OP COMMISSIONERS. 


The auditor shall record among the records of the hoard 
of commissioners, the names of the persons so drawn, and 
shall deliver a certificate thereof to the clerk of the circuit 
court, who shall record the same on the order hook of said 
court, and the persons so drawn shall compose the panel of 
grand jurors for the first term of the circuit court; and 
said clerk shall issue a venire to the sheriff accordingly. 

A panel of grand jurors shall be separately selected, at 
the same time and in the same manner, for each term of 
the circuit court to he filled in one year, hut the same per¬ 
son shall not be selected for any two terms in the same 
year. 

If the hoard of commissioners shall fail to select the 
grand jurors at their first annual session, they shall select 
at the next or any other session.(215) 

24. The township trustee, with the concurrence of the 
hoard of county commissioners, shall assess annually a road 
tax of not less than one nor more than twenty-five cents 
on the one hundred dollars, to be levied according to the 
amount of real and personal property owned in said town¬ 
ship subject to taxation, to he collected, &c.(160) 

25. That the number of justices of the peace in each 
township shall he regulated by the hoard of county com¬ 
missioners of the county, by proper orders of record; hut 
the number shall not exceed three for each township, and 
one in addition thereto for each incorporated town therein, 
and two in addition thereto for each incorporated city 
therein; and authenticated copies of such orders shall 
he furnished by the auditor to the clerk of the circuit 
court.(161) 

26. That it shall be lawful for the board of county 
commissioners of any county in this State to convey to the 
hoard of trustees of any incorporated town, or to the com¬ 
mon council of any city, and the successors in office of 
such trustees or councilmen in office, any cemetery adjoin¬ 
ing to, or within the corporate limits of such town, or city, 


(215) 2 G. & H. (160) Act 1867, pp. 134,135. (161) Act 1867, p. 152 j 

28 Ind. 51. 



JURISDICTION. 


123 


upon tlie application of a majority of the citizens of such 
incorporated town or city, or on petition of the president 
and trustees of such incorporated town, or the mayor and 
common council of such city to such county hoard, notice 
of which application shall have been given by publication 
in a newspaper of general circulation, printed and pub¬ 
lished in such city or incorporated town, or by posting up 
not less than three written advertisements of such intended 
application, in public places therein, for not less than 
twenty days before any regular session of such board of 
county commissioners.(163) 

23. The board of commissioners of each county shall 
furnish the necessary record books, fuel and stationery for 
the offices of auditor, treasurer, recorder and clerk, and 
may, in their discretion, furnish the same to the sheriff of 
the circuit and common pleas court of their respective 
counties, at the expense of such county, and shall also pro¬ 
vide safe and suitable offices for such officers. 

22. That the several boards of county commissioners 
of this State be, and they are hereby authorized to procure 
a proper book for the purpose of receiving subscriptions 
and donations from any person or persons who may desire 
to contribute for the erection of a monument to those who 
have or may lose their lives in the present war, from their 
own counties; said subscription book shall be properly 
preserved by the several county auditors, and shall be free 
to the inspection of any one who has lost friends or rela¬ 
tions in the present war for the suppression of the rebel¬ 
lion. 

The said several boards of county commissioners may make 
such allowances or appropriations out of their several 
county treasuries as they may think proper for the pur¬ 
poses named in the first section of this act. 

Whenever the funds shall be deemed sufficient as speci¬ 
fied in the first and second sections of this act, the said 
boards of commissioners shall proceed to select and pur¬ 
chase, if not donated, a suitable spot of ground at or near 


(163) Act 1867 , p. 31. 



124 THE BOARD OF COMMISSIONERS. 

the county seat of each county, whereon shall be erected a 
monument to the memory of the soldiers who have lost 
their lives in putting down the rebellion, whereon their 
name# shall be inscribed, with the name of the battle or 
place where they fell. 

The grounds or monuments shall be under the care and 
control of the said several boards of county commissioners, 
who shall see to the proper preservation of the same. 

The funds so paid or donated for the purposes aforesaid, 
shall be paid to the proper county treasurers, for which 
they shall be charged by the county auditors, and the same 
shall be styled “ the soldier’s monument fund.” 

27. That in all cases where there has heretofore been, 
or may hereafter be, a change of county boundary, by 
which territory lying in one county is attached to another, 
it shall be the duty of the board of county commissioners 
of the county to which said territory has been or may be 
attached, to procure a suitable book or books, and to cause 
to be copied therein from the records of the recorder’s 
office of said other county, all deeds and mortgages of real 
estate within said territory that shall have been recorded 
before the change of boundary aforesaid.(164) 

28. That any person, not a body corporate, who may be 
interested in constructing any levee, drain, break-water, or 
who may be interested in opening or clearing out any 
drain or water course, or doing any other work necessary 
to protect or reclaim wet lands, which cannot be completed 
without affecting the lands of other persons, may make 
application in writing to the board of commissioners of 
the county in which the lands to be affected thereby, or 
some paid thereof, are situated, specifying the character of 
the work contemplated, its general course, extent, hight, 
depth, width, the amount of fall per mile, the point of be¬ 
ginning and its terminus, with a description of the lands to 
be affected thereby, together with the names of the owners 
of such lands, if the same be known to such applicant, or 
the name of the occupant of such lands, if any there be, 


(164) Act 1867, p. 32. 



JURISDICTION. 


125 


and thereupon said board shall appoint three disinterested 
freeholders of the county in which the application is made, 
and not of kin to any of the parties, appraisers to assess the 
benefits and damages to any of such lands incident to said 
contemplated work. 

The auditor of such county shall make out and deliver 
to such applicant a transcript of the application, and of 
the proceedings of the board of commissioners thereon. 
Such applicant shall deliver said transcript to the persons 
appointed appraisers by the hoard of commissioners.(165) 

29. That whenever fifty-five per cent, of the legal 
voters of any county in this State shall, by written petition 
request the board of commissioners of their county to re¬ 
locate the county seat of such county, designating in such 
petition the site where such re-location is desired, and shall 
procure the conveyance to such board by deed conveying 
good title of two lots of ground, one containing not less 
than two acres as a site for the court house, and the other 
containing not less than one-fourth of an acre as a site for 
the county jail, to be held by such board for that purpose, 
and shall deposit with such board the sum of one hundred 
dollars to pay an architect, and one hundred and fifty dol¬ 
lars to pay commissioners to assess damages, then such 
board shall proceed to have new county buildings erected 
thereon, and the county seat removed thereto, in the manner 
and upon the conditions set forth in the following section: 
Provided , That no such re-location of a county seat shall 
be made unless it shall be removed at least three miles. 

If such petitioners, or some of them, shall, within three 
months after such estimates and plans are presented, cause 
to be paid into the county treasury, or the payment thereof 
secured to such board to their satisfaction, a sum equal to 
the value of the real property belonging to the county at 
the then county seat, then such board shall at once cause 
the auditor to immediately advertise in the newspapers of 
such county, if any there be, or if none, then in the near¬ 
est newspaper of general circulation, and by posting in six 


(165) Act 1867, p. 186. 



126 


THE BOARD OF COMMISSIONERS. 


places m said county, for sealed proposals for the erection 
of such buildings according to said plans and specifica- 
tions.(166) 

30. The board of county commissioners of the proper 
county may designate one or more places of holding elec¬ 
tions in any township, or form precincts of two or more 
townships, when public convenience require it. And in case 
such board of commissioners shall designate more places of 
voting in any township, or form a precinct of two or more 
townships, they shall at the June term of said board of 
county commissioners preceding any election, appoint some 
freeholder who shall be a qualified voter of such precinct, to 
act as inspector thereof, and may at any general or special 
session, fill any vacancy that may have occurred, and such 
inspector shall, previously to the time of opening the elec¬ 
tion at any precinct, appoint two freeholders, qualified 
voters of such precinct, judges of such election, such judges 
to be selected from the political parties, so that each party 
may have a representative on the board of election: Pro¬ 
vided, There are different political parties in such precinct, 
and such appointment shall be made from the two political 
parties casting the highest number of votes in such town¬ 
ship or precinct, and such judges, together with such in¬ 
spector, shall constitute a board of elections.(167) 

31. Whenever in the opinion of the County Commission¬ 
ers of any county the public convenience requires that 
a bridge should be repaired or built over any water course, 
they shall cause a survey and estimate thereof to be made 
and the same to be erected. If the estimate thereof shall 
exceed the ability of the road district in which it is to be 
built, by application of its ordinary road work and tax to 
perform, the County Commissioners may make an appro¬ 
priation from the county treasury to build or repair the 
same. They must receive and appropriate all donations for 
the repair and erection of bridges in their county. They 
may appoint to superintend the repairing and erection of 
any bridge one or more directors. They may authorize any 

(166) Act 1869, reg. ses. p. 8. (167) Act 186-, special ses. p. 59: 1 G. & H. 
pp. 195, 196, 197. 



JURISDICTION. 


127 


person to build a bridge across any stream of water in their 
county and charge toll on the same in the payment of ex¬ 
penses of building the same. But they must reserve to 
themselves the right to levy and take possession of any 
such bridge by paying to the builder the sum expended in 
its erection with ten per cent, thereon. And they must, 
under such circumstances, regulate the toll to be charged 
by the builder. They may also charge toll on any bridge 
erected by them until they have received the entire amount 
expended in the building of the same, when the toll must 
cease. They may also, when they deem it for the public 
good, buy any toll bridge or purchase any private interest, 
and order the purchase money to be paid out of the county 
treasury. The law makes it their imperative duty to keep 
all bridges in repair in their county. And they must cause 
the supervisor of the proper road district to keep in a con¬ 
spicuous place at each end of every bridge in his district, in 
some conspicuous place, the following: One dollar fine for 
riding or driving over this bridge faster than a walk.(l,68) 

32. They have authority to establish ferries across creeks 
and rivers in their county, on application by any person 
who may own or hold by lease land on any creek or river, 
by petition. Before the board will be authorized to take 
jurisdiction of such cases, the applicant must show to the 
satisfaction of the board that he has given notice of the 
time and place that the applicant would apply for license 
by posting up written notices in three public places in the 
county before the meeting of the board. 

When any river or creek shall be the boundary between 
two counties, any person, persons or corporation holding 
land on either side of said river or creek who shall desire a 
public ferry across the same, shall apply to the Board of 
County Commissioners for the county in which the land 
lies, who are authorized to establish such ferry from the 
land of such applicant to the opposite side, and in such case 
a certified copy of the order establishing shall be transmit¬ 
ted to the auditor of the county on such opposite side at 


(168) i G. & H., pp. 202, 203 and.204. 



128 


THE BOARD OF COMMISSIONERS. 


the expense of such applicant, and thereupon such county 
may assess a tax for license for such ferry, a sum not ex¬ 
ceeding for both counties the amount charged for such ferry 
where one county alone is concerned, half of which tax 
shall be assessed by each county. But no ferry can be estab¬ 
lished by them either one mile below or above an established 
ferry, unless public convenience requires it. 

If the owner of any land, lying on any creek or river 
where any road may cross, and public convenience requires 
a ferry, shall fail to have one established within a reasona¬ 
ble time after three months 5 notice in a public newspaper 
of the county, or by written notices set up in three of the 
most public places therein, the proper Board of County Com¬ 
missioners may grant license to any person applying, to keep 
a ferry at that place, who may occupy as much ground, not 
exceeding one hundred rods on each side, as is necessary to 
discharge passengers. 

But before such ferry shall be established, as provided for 
in the preceding section, such board shall appoint three dis¬ 
interested persons to view the premises in question, and as¬ 
sess such damages as the owner of such land shall sus¬ 
tain by reason of the establishment of such ferry thereon, 
which assessment shall be returned and filed in the proper 
auditor’s office, and upon the amount of such assessment 
being tendered the owner, or deposited in such auditor’s 
office, such ferry may be established, and if the amount of 
such assessment be deposited in such office, the auditor shall 
give notice thereof to the owner. 

The owner of the land where such ferry may have been 
established may take possession thereof on tendering the 
holder the full value of all the boats and other craft which 
may have been necessarily employed for the transportation 
of passengers and property, with all other expenses that 
may have accrued in improving the ferry, and ten per cent¬ 
um thereon, giving also the Board of County Commission¬ 
ers a bond, with security, as hereinafter prescribed; which 
bond shall be a complete release of the obligations contained 
in the bond previously given by the holder of the ferry. 

The Board of County Commissioners shall have authority 


JURISDICTION. 


129 


to order and direct, from time to time, the number and de¬ 
scription of boats, and the number of hands which shall he 
kept at each ferry respectively. 

Before the issuing of license to any person to keep a fer¬ 
ry, he shall execute to the State of Indiana a bond in the 
penal sum of five hundred dollars, with surety to the accept¬ 
ance of the county auditor, conditioned for the keeping 
such ferry according to law, which bond shall be filed in 
the auditor’s office. 

Each licensed ferry keeper shall constantly keep a suffi¬ 
cient number of boats, if more than one be required by the 
Board of Commissioners, and give due attention to the trans¬ 
portation of all persons, with their property, who shall ap¬ 
ply for the same, between daylight in the morning and dark 
in the evening, and at any hour of the night if required, 
except in cases of evident danger, to all other persons re¬ 
quiring the same, on their tendering double the rate of fer¬ 
riage allowed to be taken in the day time, and such board 
may require such ferry keepers to keep such ferry open till 
midnight. 

It shall be the duty of all ferry keepers within the State 
to cause the banks of the river or creek to be dug sufficiently 
low and kept in good passable order for the passage of man 
and horse, wagons and other vehicles; and such ferry keep¬ 
ers, and persons employed in attendance at such ferry, shall 
not be compelled to serve on juries or perform military 
duty. 

The rates of ferriage shall be fixed by the Board of County 
Commissioners at the time of licensing the ferry, and from 
time to time thereafter, as they shall think proper. 

If any ferry shall not be furnished with the necessary boats 
and ferrymen within six months after the establishment 
thereof, or if the proprietor shall wilfully neglect to attend 
to the same, or shall fail to comply with any of the require¬ 
ments of the proper Board of Commissioners, such board 
on complaint to them, shall cause the proprietor of such 
ferry to be summoned, to show cause at the next meeting 
of the board, why such ferry shall not be discontinued, 
and such board shall vacate such ferry or dismiss such com- 


130 


THE BOARD OF COMMISSIONERS. 


plaint, according to the testimony adduced, and may award 
costs against the complainant if such complaint is dismissed, 
or against the proprietor if the ferry he vacated. 

If any person is aggrieved by the establishment or vaca¬ 
tion of a public ferry, he shall have the right to appeal to 
the circuit court of the proper county upon filing bond within 
thirty days thereafter, payable to the treasurer of the county, 
with security to be approved by the county auditor, and con¬ 
ditioned for the due prosecution of such appeal, the payment 
of all costs, if judgment be rendered against such appellant; 
and the county auditor shall cause such bond, with a certified 
copy of the proceedings of said board, and all the original 
papers of the cause, to be filed in the office of the clerk of 
the circuit court, within twenty days thereafter; and such 
cause shall be docketed for the ensuing term, and further 
proceedings had, and judgment rendered therein as in other 
cases of appeal. 

When any person shall ferry across the Ohio or Wabash 
river on the Indiana shore, any where within one mile of any 
established ferry, any person or thing whatever, for which 
the owner of such ferry might have been entitled to ferri¬ 
age had he ferried over the same, such person so ferrying 
the same over shall be liable to pay to the owner of such 
ferry the full amount of such ferriage, unless such estab¬ 
lished ferry was out of repair and not sufficiently attended; 
and in cases of sickness or distress, where delay would be 
dangerous. 

It shall not be lawful to obstruct by steamboats, keelboats, 
flatboats, or otherwise, the landings of ferries established 
under this act; but such ferries shall be entitled to the ex¬ 
clusive use of the whole width of the routes leading there¬ 
to for all appropriate purposes. (170) 

33. The board may establish and maintain a public library 
in each of the several counties, for the use of the inhabitants 
thereof, there shall be reserved ten per cent, of the net pro¬ 
ceeds of all lots within the town where the county seat is sit¬ 
uate, sold as the property of such county, and ten per cent. 


(170) i G. & H., pp. 344, 345 and 346. 



JURISDICTION. 


131 

upon all donations made to procure the location of such 
county seat; and the county commissioners shall make the 
necessary order for the collection and payment of the same. 

The Board of Commissioners doing county business may 
at their June session in each year appropriate a sum not 
less than, twenty, nor more than seventy-five dollars for the 
purchase of books, maps and charts for such library, and 
the same shall be paid to the treasurer of the library by the 
treasurer of the county, upon the certificate of the auditor 
thereof. 

The clerk, auditor, and recorder shall have the charge of 
such library, and are hereby constituted trustees for that 
purpose. They shall elect one of their number treasurer, 
and a suitable person librarian, and shall prepare a proper 
room, with the necessary shelves and cases, within some 
county office, or building when practicable, to place and 
safely keep such library. They shall cause all moneys ap¬ 
propriated or belonging to the library, to be expended in 
the purchase of books, charts and maps, and report to the 
board of county commissioners in June, annually, the kind 
and number of books purchased, with the cost thereof. 
Each of said officers shall be liable on his official bond for 
the performance of duties herein required of him. 

Every inhabitant of the county giving satisfactory evi¬ 
dence or security for the safe keeping and return of the 
books, shall be entitled to take and use the same upon the 
proper application to the librarian. But no one person 
shall at the same time have more than two volumes of 
books, nor for a longer period than forty days, without re¬ 
turning such books to the library. 

The trustees shall establish by-laws, and rules for the 
regulation of such library, and the same shall be placed at 
a conspicuous point in the library room for the inspection 
of visitors. All fines or forfeitures accruing from the viola¬ 
tion of such by-laws shall be recoverable in an action be¬ 
fore any court of competent jurisdiction in the name of the 
State of Indiana, for the use of such library; and the libra¬ 
rian shall be a competent witness in such action, and the 
10 


132 


THE BOARD OF COMMISSIONERS. 


entries made upon his hooks, in relation to such library, 
shall be prima facie evidence of the things therein charged. 

The librarian shall make an entry in a proper book, of 
each book or map taken, the time thereof, by whom and 
when returned. He shall also keep a registry of the fines 
and penalties assessed, and collect the same by suit or 
otherwise. At the June session of the board of county 
commissioners in each year, he shall report the condition 
of such library, the books added or lost, within the pre¬ 
ceding year, and the value of the same. (171) 

34. That the boards doing county business in the several 
counties in this State be, and the same are hereby author¬ 
ized to declare any water course in their respective counties 
navigable, on the petition of twenty-four freeholders of the 
county, residing in the vicinity, through which the same 
may run, and which is intended to be declared navigable. 

The said board shall cause an examination of the water 
course intended to be declared navigable, to be made by 
some suitable person, who shall ascertain and report to said 
board the length of the same, and how much thereof is 
capable of being declared navigable, which report, if in 
the opinion of said board, satisfies them of the said stream 
being of public utility, as a navigable one, the said board 
shall confirm said report, and cause the same to be recorded 
on the records of said board, as public highways are re¬ 
corded. 

The supervisor of the road district through which said 
water course may run, shall take charge thereof, as a part 
of his general duties as supervisor of public highways, and 
for the purpose of keeping the same in a navigable order, 
said supervisor shall annually call out for two days the in¬ 
habitants of said district, liable to work upon the public 
highways, who shall work on and clear out the timber and 
other obstructions that may obstruct the navigation thereof. 

Any person obstructing any water course declared navi¬ 
gable, shall be liable to the same pains and penalties of 
persons guilty of obstructing public highways, and the 


(171) 1 G. & H. pp. 421, 422. 



JURISDICTION. 


133 


general laws governing roads and public highways and the 
laying out and working thereof in all other respects, shall 
be the law governing the laying out and working of navi¬ 
gable water courses. 

The declaration of navigable water courses as navigable, 
by said county board, shall not affect any mill nor any dam, 
aquaduct, viaduct, bridge, or machinery which has been, or 
may hereafter be established on said stream. 

The boards of commissioners of the several counties 
shall have power to appropriate from the county treasury 
such sums of money as they may deem necessary, not ex¬ 
ceeding two hundred dollars, to remove obstructions from 
such streams, as have been heretofore declared navigable 
by law, or may be hereafter declared navigable, under the 
provisions of this act; and to require the supervisor of any 
district through which such streams may run, to call out 
the hands in such district as many days, besides the two 
days mentioned in the third section of this act, as may be 
necessary to remove obstructions from such streams: Pro¬ 
vided , That no person shall be required to work more than 
four days.(172) 

35. That the county commissioners of any county in 
this State may, at their option, authorize and direct the 
subscription to and preservation of the public newspapers 
printed in their county. 

Upon a certified order to that effect, the recorder of such 
county, or person doing the business of recorder shall sub¬ 
scribe for one of each of the newspapers of a political or 
miscellaneous character published in his county, file the 
same in his office and cause said newspapers to be substan¬ 
tially bound, from time to time, in volumes of a conve¬ 
nient size, to be kept in his office for the use of the inhab- 
itance of this State who shall, at all times during office 
hours, have access to the same free of all charge and ex¬ 
pense. 

The subscription price and expense of binding and pre¬ 
servation of such newspapers shall be paid out of the 


(172) 1G. & H. pp. 442, 443. 



134 


THE BOARD OF COMMISSIONERS. 


county treasury, and the accounts therefor be audited and 
allowed in the same manner that other accounts are.(173) 

The importance of preserving the papers containing legal 
advertisements is apparent to all, and is a matter of great- 
interest to the people of every county in the State, and the 
different boards of commissioners of each county should not 
overlook this duty. 

36. When a recorder of any county of this State has 
neglected to make out a general index to all deeds and 
mortgages on record in his office, he should do so at once, 
and the board of commissioners of his county must com¬ 
pensate him for his labor out of the county treasury at the 
rate of fifteen cents per hundred words.(174) 

37. Whenever any bridge company has abandoned any 
bridge, or when the right to take toll has expired, may 
expire, by limitation of the charter thereof, it shall be 
lawful for the commissioners of the county in which such 
bridge may be situated, to require the same, and the grades 
thereof, to be repaired, if they shall deem that the public 
good requires it; and for this purpose they have all the 
powers given to them for the erection and repair of other 
bridges. 

38. They may cause toll to be collected on any such bridge 
or bridges, and they may, at their discretion, authorize any 
bridge company whose charter, or right to take toll, has 
expired, to repair such bridge and grade, and take such 
toll as such commissioners may from time to time fix for 
that purpose. But in no case can toll be charged on any 
bridge erected or repaired under the act approved March 
3,1855, of persons going to or returning from any election, 
religious meeting, or attending a funeral.(175) 

39. That the board of county commissioners in any 
county may, at their option, allow on silk raised in the 
county, at the following rates, namely: for every pound of 
cocoons, fifteen cents; for every pound of reeled silk, 
twenty-five cents, on the following conditions: 


(173) i G. & H. pp. 444, 445. (i 74 ) 1 G. & H. p, 531. (175) 1 G. & H. 
pp. 202, 203, 204. 



JURISDICTION. 


135 


Any resident of the State may present to any justice of 
the peace of the county in which he resides, one pound or 
more of good, dry, silk cocoons, or of well reeled silk, 
and if such resident shall, by his own oath or that of any 
other credible person, establish to the satisfaction of such 
justice that the cocoons presented were raised in such 
county, or, as the case may be, that the silk was reeled in 
such county from cocoons raised within the State, and that 
no portion of such cocoons or reeled silk had before been 
presented to any justice for examination and certificate, 
such justice shall issue his official certificate, specifying the 
number of pounds of cocoons or reeled silk presented, the 
date, the owner’s name and residence, and the names, if 
any, of the testifying witnesses, which certificate shall be 
to the board of county commissioners sufficient evidence of 
the facts therein stated, and shall be retained and filed by 
such board; and no bounty shall be allowed by such board, 
except in pursuance of such certificate.(176) 

40. They may, on presentation of a petition in writing, 
signed by not less than one-third of the qualified voters of 
any territory, cause the same to be incorporated as a town. 
(177) [See post pages.] 

41. Whenever any incorporate town shall desire to an¬ 
nex contiguous territory thereto, not platted, the board of 
commissioners of the proper county, on presentation by 
the trustees of said town, of a petition asking for such an¬ 
nexation, &c., may annex the same to said corporation.(178) 
{See post page.] 

42. That the several boards of county commissioners 
within this State be, and they are hereby authorized and 
required to procure for their respective counties, and at the 
expense of the same, a set of the following measures and 
weights for the use of their county; that is, one measure 
of one foot, or twelve inches English measure, so called; 
also one measure of three feet, or thirty-six inches, as 
aforesaid; also one half bushel measure for dry measure, 

{176) 1 G. & H. p. 572. (177) 1 G. & H. p. 621. (178) 1 G. & H. p. 630. 


136 


THE!! board of commissioners. 


which shall contain one thousand and seventy-five and one- 
fifth solid inches; also one gallon measure, which shall con¬ 
tain two hundred and thirty-one solid inches; which meas¬ 
ures are to be of wood or any metal the court may think 
proper; also one set of weights commonly called avoirdu¬ 
pois weights, and sealed with the name or initial letters of 
the county inscribed thereon; which weights and measures 
shall be kept by the county auditor of each and every 
county in this State for the purpose of trying and sealing 
the weights and measures used in their counties. 

As soon as the several boards of county commissioners 
shall have furnished the weights and measures as aforesaid, 
they shall cause notice thereof to be given at the court 
house door for one month, and any person or persons de¬ 
sirous of having his, her or their weights and measures tried 
by the county standard, shall apply to the county auditor, 
of the county in which he shall live, and if they correspond 
with the standard, the county auditor shall seal them with 
the seal provided for that purpose. 

That sixty pounds of wheat (avoirdupois weight) shall be 
given and taken for a standard bushel; of shelled corn, fifty- 
six pounds; of corn on the cob, sixty-eight pounds; of 
buckwheat, fifty pounds; of beans, sixty pounds; of pota¬ 
toes, sixty pounds; of clover seed, sixty pounds; of hemp 
seed, forty-four pounds; of blue grass seed, fourteen pounds; 
of castor beans, forty-six pounds; of dried peaches, thirty- 
three pounds; of dried apples, twenty-five pounds; of on¬ 
ions, forty-eight pounds; of salt, fifty pounds; of mineral 
coal, mined without, and sold within the State, eighty 
pounds; of coal mined within the State, seventy pounds; 
of timothy seed, forty-five pounds; of rye, fifty-six pounds; 
of barley, forty-eight pounds; of corn meal, fifty pounds • 
and two thousand pounds of hay shall be given and taken 
for a ton. 

All the different kinds of grain, seeds and articles speci¬ 
fied above, shall hereafter be given and taken at the several 
weights affixed to each, as a standard bushel; and as such 
shall be considered a legal tender to fulfil any contract 


JURISDICTION. 137 

heretofore made for the delivery of either of the kinds of 
grain, seeds or articles specified above.(178) 

43. The board of County Commissioners must fill all va¬ 
cancies in county or township offices, except justices of the 
peace and such township or other offices the vacancy in 
which are otherwise provided for; and such appointment 
shall expire when a successor is elected and qualified, who 
shall be elected at the next general or township election, as 
the case may be, proper to elect such officer. A vacancy 
occurring pending a contested election shall be filled as 
other vacancies until such contest is decided, or the office 
otherwise filled. A person temporarily filling a 'vacancy 
shall give such bond, take such oaths, have the same rights 
and perform the same duties as the officer whose place he 
fills. (179) 

44. That the commissioners of each county may cause to 
be paid out of the county treasury a sum not exceeding five 
dollars, to any person who shall ^exhibit to them a -wolf 
scalp, and take and subscribe an oath that the wolf to which 
such scalp belonged was killed in the county, and that no 
reward therefor has been paid him out of such treasury; 
but no more than one dollar and fifty cents shall be paid for 
the killing of any wolf under the age of six months; and 
such commissioners shall cause all such scalps thus exhibit¬ 
ed to them to be immediately destroyed.(180) 

45. The Board of Commissioners of the several counties 
may authorize the auditor of their respective counties to 
sell and make conveyances for any lands owned by such 
county and prosecute suit for collection of the purchase 
money therefor. For all services touching such agency 
such board shall allow such auditor reasonable compensa¬ 
tion.(181) 

46. They may on petition locate and establish, change 
and vacate highways.(181) 

47. That in any county where the whole fees allowed by 
law to the clerk, sheriff, auditor or treasurer amounts in the 

(178) I G. & H., 674; Act of 1863, p. 40. (179) i G. & H., 671 and 672. 
<180) 1 G. & H., p. 675. (181) 1 G. & H., p. 677. (181) 1 G. & H., p. 359; 
Act of 1867, p. 131. 



138 


THE BOARD OF COMMISSIONERS. 


aggregate to less than one thousand dollars per annum, the 
Board of Commissioners may, in their discretion, allow 
such officers such an amount as they in their discretion may, 
deem just and proper, but such allowance shall not exceed 
three hundred dollars to any officer in any one year.(182) 

48. Their fees for each day’s attendance as members of 
the county board or Board of Equalization, they are each 
entitled to receive five dollars.(182) 

49. They must allow the coroner for impanneling and 
summoning a jury and witnesses and making and returning 
inquisition for view of each body for first day, §10.00; for 
each additional day, §5.00; jurors fees before coroner §1.00. 

50. They must allow the Township Trustees for each ac¬ 
tual day’s service, to be paid out of the township fund, 
§3.00. But in estimating the number of days portions of 
days less than one-half shall not be counted; and portions 
of days greater than one-half shall be counted as a whole 
day.(183) 

51. But they can make no allowance for any service ren¬ 
dered by any county officer in a criminal cause, nor for any 
service rendered in a civil cause, when no provisions of law 
authorizing such allowance and payment for extra services, 
as such officer, nor for deputy hire. (183) 

52. The Board of County Commissioners, Auditor and 
Assessor must meet at the seat of justice of each county on 
the first Monday in June annually, and shall when so met 
constitute a County Board of Equalization for both real and 
personal property listed for taxation.(184) 

53. The County Assessor’s fees must be allowed by the 
board, also their deputies—Assessors for each day actually 
employed, §4.00; Deputies, §3.00.(185) 

54. They must instruct the auditor in case of a delinquent 
county treasurer, or when a treasurer refuses or neglects to 
pay over all moneys as provided in the act approved De¬ 
cember 21,1872, to bring suit on his official bond.(186) 

55. They are authorized to correct mistakes made by the 

(182) Act approved March 8, 1873. (183) Act approved March 8, 1873. 

(184) Act approved December 21, 1872. (185) Act of March 8, 1873. (186) 

Act approved December 21, 1871, sec. 185. 



JURISDICTION. 139 

county treasurer in paying over or accounting to them for 
money. (187) 

56. They may render an excuse for the treasurer’s failure 
to pay over to the Auditor of State money due the State. 
(188) 

57. They can, on presentation of a petition, and after a 
legal election by the qualified voters, appropriate money 
from a township in their county, or for their county, to aid 
a railroad company to construct its road through said town¬ 
ship or county.(188) See post, p. —. 

58. They can, also, on petition filed by one hundred free¬ 
holders of any county, or twenty-five freeholders of any 
township, appropriate money to aid a railroad company in 
an adjoining State to construct a road near the State line, 
the money to he appropriated from the township and county, 
after there has been an election hbld in such county or town¬ 
ship resulting in favor of the appropriation. (189) See post , 
page —. 

59. They have jurisdiction in all contested election cases 
for county and township officers. Also in cases of contest 
for the office of judge of the circuit court and prosecuting 
attorney. But where the contest is for a district office and 
the district is composed of two or more counties, the board 
in the county giving the largest number of votes for said 
officer has jurisdiction only. 

There is a typographical error in section 16 of the Act 
approved May 4,1852. It should be, “ and the contest for 
district and circuit offices, not otherwise provided for in this act , 
shall be tried in the county giving the largest number of votes for 
said officer ” But as the trial and proceeding in all contest¬ 
ed election cases is the same, for information in such cases 
see ante, page —.(190) 

60. Whenever any person or persons, body politic or cor¬ 
porate, shall appear before the Board of Commissioners of 
any county in this State, and establish by proper proof that 
such person, body politic or corporate has paid any amount 

(187) Act approved December 21, 1872, sec. 187. (188) Act approved De¬ 
cember 21, 1872, sec. 286. (188) Act of 1869, Special Sess., p. 92. (189) Act 

approved December 14, 1872, p. 49. (190) 1 Res. by G. & H., p. 318. 



140 


THE BOARD OF COMMISSIONERS. 


of taxes which were wrongfully assessed against such per¬ 
son, body politic or corporate in such county, it shall be the 
duty of said board to order the amount so proved to have 
been paid to be refunded to said payer from the county 
treasury, so far as the same was assessed and paid for county 
taxes. And when the amount so wrongfully assessed shall 
be for State purposes, after hearing the proof, if the board 
is satisfied that the complaining party has been wrongfully 
assessed, and that he has actually paid faxes that he was 
not bound to pay under the law, they must certify the same 
to the Auditor of State, who will audit the same against 
the State Treasurer. (191) 

61. They must, when the State has lost any amount of 
tax by reason of the default of the assessor, treasurer or 
auditor of their county, in the discharge of the duties im¬ 
posed upon them by any of the provisions of chapter six 
of the act of 1852, add such loss to the next years’ taxes 
of their county, and cause the same to be paid into the 
State treasury.(192) 

62. They must contract with one or more skillful phys¬ 
icians having knowledge of surgery, to attend upon the 
prisoners confined in jail, or paupers in the county asylum, 
and may also contract with physicians to attend upon the 
poor generally in their county; and no claim of a physician 
or surgeon for such services shall be allowed by such board 
except in pursuance of such contract. But the overseers 
of the poor may employ such medical or surgical service 
as the paupers of his township may require, and the 
county will be liable for the services so rendered. (193) 

63. That it shall be the duty of the board of commis¬ 
sioners of the different counties in this State to direct by 
an order entered on the order book of said board of com¬ 
missioners, what kind of animals shall be allowed to pas¬ 
ture or run at large upon the unenclosed land, or public 
common within the bounds of any township in their re¬ 
spective counties. 

The board of commissioners of the different counties of 


(191) I G. & H., p. now (192) I G. Sc H., p. 113, sec. 198. (193) 1 G. Sc 
H., p. 64 and 499, sec. 27. 



JURISDICTION. 


141 


this State shall specify in said order, by name the kind of 
animals that shall run at large or pasture upon the unen¬ 
closed land or public common within the different town¬ 
ships in the county, and also what particular class of the 
said kinds of animals, whether male or female, and of what 
age shall be allowed to so run at large.(194) 

64. They may, either in vacation or in regular session, 
meet and approve the official bonds of the clerk of the cir¬ 
cuit court, sheriff* coroner and county recorder; in doing 
this they must indorse their approval on their bonds and 
each commissioner sign it.(194) 

65. When any new county shall have been formed out 
of the territory lying in whole or in part within the limits 
of any other county, it shall be the duty of the board of 
the county so formed to procure a suitable book, and to 
cause to be therein copied from the record of the recorder’s 
office of such other county or counties, all deeds of real 
estate within such territory that shall have been recorded 
before the organization of such newly formed county.(196) 

66. In case any canal company shall fail to build or re¬ 
pair any bridge across the canal of said company as re¬ 
quired by law, the board of commissioners of the county 
in which the bridge should have been built, must bring suit 
in their corporate name against the delinquent company. 
(197) 

67. The board of commissioners of Marion county are 
authorized by the act approved March 7, 1867, to make an 
appropriation from their county to aid in the construction 
of the widows’ and orphans’ asylum of Indianapolis.(198) 

68. Every county shall relieve and support all poor and 
indigent persons lawfully settled therein, whenever they 
shall stand in need thereof, and the board of county com¬ 
missioners may raise money for the support and employ¬ 
ment of the poor in the same way and manner as in the 
forty-sixth section of this act is provided. 

Legal settlements may be acquired in any county, so as 


(94) Act 1851, p. 90; Act special session 1865, p. 278. (196) 1 G. & H., 
p. 194. (197) 1 G. & H., g. 204. (198) Act 1867, p. 229. 



142 


THE BOARD OF COMMISSIONERS. 


to oblige such county to relieve and support the persons 
acquiring such settlement, in case they are poor and stand 
in need of relief, as follows: 

A married woman shall always follow and have the set¬ 
tlement of her husband, if he have any within the State, 
otherwise her own at the time of marriage, and if she then 
had any settlement, it shall not be lost or suspended by the 
marriage; and in case the wife shall be removed to the 
place of her settlement, and the husband shall want relief, 
he shall receive it in the place where his wife shall have 
the settlement. 

Legitimate children shall follow and have the settlement 
of their father, if he have any within the State, until they 
shall gain a settlement of their own; but if the father 
have no settlement, they shall in like manner, follow and 
have the settlement of their mother, if she have any. 

Illegitimate children shall follow and have the settlement 
of their mother, at the time of their birth, if she then 
have any within the State; but neither legitimate nor ille¬ 
gitimate children shall gain a settlement by birth in the 
place where they were born, unless their parent or parents 
had a settlement therein at the time. 

Every male person, and every unmarried female over the 
age of twenty-one years, who shall have resided in any 
county in this State one whole year without interruption, 
shall thereby gain a settlement in such county. 

Every minor whose parent, and every married woman 
whose husband has no settlement in this State, who shall 
have resided one whole year without interruption, in any 
county in this State, shall thereby gain a settlement in such 
county. 

Every minor who shall be bound as an apprentice to any 
person, shall, immediately upon such binding, if done in 
good faith, thereby gain a settlement where his or her 
master or mistress has a settlement. 

Every settlement, when once legally acquired, shall con¬ 
tinue until it shall be lost or defeated by acquiring a new 
one in this state, or by willful and uninterrupted absence 
from the county in which such legal settlement had been 


JURISDICTION. 


143 


gained, for one whole year or upwards; and upon acquir¬ 
ing a new settlement, or upon the happening of such will¬ 
ful and uninterrupted absence, all former settlements shall 
be defeated and lost. 

To raise the sum necessary for the purchasing of land 
and the erection and furnishing of the buildings for such 
asylums, the boards of county commissioners in the several 
counties shall have power to assess a tax on property liable 
to be assessed for raising a county revenue, not exceeding 
one-fourth in^addition to the rates at which such property 
may be assessed by the existing laws. 

So soon as the necessary provisions may be made by the 
erection of suitable buildings, the said board shall direct 
and order that all persons who have become permanent 
charges as paupers on the county, be removed to such asy¬ 
lum, and shall take such measure for the employment and 
support of such paupers as they may deem advisable; and 
thereafter the overseers of the poor shall, from time to 
time, as persons may become permanent charges to their 
respective townships as paupers, have such persons re¬ 
moved to the said asylums. 

Such superintendent or superintendents shall give bond, 
with freehold security, to said board in the penalty of five 
hundred dollars, conditioned for the faithful discharge of his 
or their duty; and he or they shall make to such board at 
their sessions in the spring and fall, annually, a detailed re¬ 
port in writing, of the time and manner of the admission of 
each pauper; their health and fitness to labor; the results of 
their industry, and the expenses incurred, and it shall be 
the duty of the members of such board, in person, annu¬ 
ally to inspect said asylum with regard to its fitness, in all 
respects, for the objects of its establishment. 

Whenever it shall be necessary and practicable, poor 
children of the asylums who cannot be bound out, or 
whom it may not be expedient to bind out as apprentices, 
shall be educated thereat. 

It shall be the duty of the superintendent or superin¬ 
tendents of any asylum erected or established by law, to 
superintend and direct the education of such poor children, 


144 


THE BOARD OF COMMISSIONERS. 


according to the preceding provisions of this act, and for 
the purpose of carrying the same into effect, with the least 
possible expense, it shall be the duty of said superintend¬ 
ent to send them to the common school in the township in 
which the asylum is situated, during the continuance of 

its session. 

« 

Any asylum or farm, provided by the board of county 
commissioners for the poor, may be discontinued by such 
board and the property, real and personal, relating thereto, 
which belongs to the county, may be sold, leased, or other¬ 
wise disposed of, or applied in such manner as may be best 
for the interests of the county. 

The boards of county commissioners of the several 
counties in this State may, if they deem it expedient, annu¬ 
ally, at their session at which the county tax is ordered to 
be levied and assessed, levy and assess a tax for the sup¬ 
port of the poor of their respective counties, on objects 
from which the county revenue is or may be directed to be 
raised; the tax hereby authorized to be laid shall be col¬ 
lected by the same officers whose duty it may be to collect 
the State and county revenue, who shall pay the same ac¬ 
cordingly into the county treasury. 

The board of county commissioners of any county may, 
in their discretion, appoint a board of visitors annually, to 
consist of one person from each township in the county, or 
a less number of persons, as they may think best, to visit, 
at least once during the year, the assylum of such county, 
and report to the commissioners its condition, and the 
treatment, management, and condition of the inmates 
thereof. 

Such visitors shall receive such compensation as the 
board shall adjudge reasonable.(199) 

The several Boards of County Commissioners are autho¬ 
rized, in their discretion, upon proof satisfactory to them 
being made that any resident of the county has lost his or 
her eye-sight, or by casualty has become otherwise unable 
to support him or herself by reason of bodily infirmity, and 


(199) 1 G. & H., P . 493. 


JURISDICTION. 


145 


that he or she has a wife or husband, as the case may be, 
and is an object of public charity, to make an order that 
the county treasurer pay over such sums of money to such 
persons, or to any person having the keeping of such per¬ 
sons, out of the funds of their respective county, as they 
may deem necessary and proper for his or her support, so 
as not to separate them from their family by being placed 
in the county poor-house.(200) 

69. That there shall be established and kept in every 
county, by authority of the Board of County Commission¬ 
ers, and at the expense of the county, a prison for the safe 
keeking of prisoners lawfully committed. 

The grand jury, at each term of the circuit court, shall 
make personal inspection of the condition of the county 
prison, as to the sufficiency of the same for the safe keep¬ 
ing of prisoners, their convenient accommodation and health, 
and shall inquire into the manner in which the same has 
been kept since the last term; and the court shall give this 
duty in special charge to such grand jury, and it shall 
be imperative upon the Board of Commissioners to issue 
the necessary orders, or cause to be made the necessary re¬ 
pairs, in accordance with the complaint or recommendation 
of the grand jury.(201) 

70. They may vacate streets and alleys on petition of an 
individual or a corporation interested in such vacation. See 
post, p. —.(202) 

71. The Board of County Commissioners in each county 
in this State may lay off and divide their county into any 
number of townships that the convenience of the citizens 
may require, accurately defining the boundaries thereof, and 
may, from time to time, make such alterations in the num¬ 
ber, name and boundaries of such townships as they may 
deem proper. They must enter the description of the boun¬ 
daries of such townships at full length on their record, and 
also all alterations in such boundaries, and all new and ad¬ 
ditional townships which may be formed.(203) 

71. That whenever any map or plat of lots or lands de- 

(200) 1 G. & H., p. 496; Act of 1857, page 18. (201) 1 G. & H., page 410. 

(201) 1 G. & H., page 362. (203) 1 G. & H., page —. 



146 


THE BOARD OF COMMISSIONERS. 


posited iii the office of any county auditor or recorder, shall 
have become so worn or defaced as to be unfit for use or 
reference, it shall be the duty of such officer having charge 
of the same to make or cause to be made, a new copy of 
such map or plat, which copy shall correspond with the orig¬ 
inal so far as the same can be deciphered, and if any part 
thereof be illegible, said officer shall resort to the most au¬ 
thentic sources to supply and fill up the same; and said map 
or plat shall be used for reference, and in all respects have 
the same legal bearing and effect as the original map or plat. 
It shall also be the duty of county auditors to take copies 
of such maps or plats in the recorder’s office as may be nec¬ 
essary for the discharge of their official duties. 

The county boards shall make such allowances to officers 
of their respective counties, for such services, as shall be 
sufficient to compensate for the same.(204) 

72. That the Board of County Commissioners in any 
county may appoint inspectors, to serve during four years, 
unless sooner removed by such board, to inspect within the 
said county when required, the following articles: salt, beef, 
pork, flour, tobacco and hay. 

All barrels, hogsheads and bales inspected shall be brand¬ 
ed with the name and residence of the inspector. 

Such boards may authorize inspectors of hay to procure, 
at expense of the county, suitable hay scales 

And. they may make such regulations in regard to the 
inspection as they may deem necessary.(205) 

73. In case the auditor of their county is unable to attend 
to the duties of his office during any term of the Board of 
Commissioners, and has no deputy, or has a deputy and he 
is unable to attend, they may appoint a deputy, who shall 
perform the duty of the auditor for the time being.(206) 

74. They may make allowances to widow women, old 
people and children for witness fees in State prosecutions. 
(207) 

75. Whenever the surplus revenue fund belonging to the 
common school in any county in this State, or any part of 

(204) I G. &. H., p. 123. (205) 1 G. & H., p. 402. (206) 1 G. & H., page 
402. (207) 1 G. & H., page 64. 



JURISDICTION. 


147 


such fund, has, by any means, become invested or changed 
into real estate, the Board of Commissioners of such county 
are authorized to dispose of the same by sale in such a man¬ 
ner as may seem best for the interest of the common school 
fund, and to receive and invest the purchase money accord¬ 
ing to law.(208) 

76. In case the trustee of any township shall fail to di¬ 
vide his township up into proper road districts, the Board 
‘of Commissioners of the county may do so.(209) 

77. They must direct the auditor of their county to issue 
fee bills for all costs made in cases tried before them. (210) 

78. That, when any public road or highway, running 
or passing along the bank of any stream or water-course, 
shall, by the falling or washing away of the bank of such 
stream or water-course, become unsafe, or inconvenient for 
use as a public highway, it shall be the duty of the super¬ 
visor of highways having such road in charge forthwith to 
give the owner or occupant of the land over which said 
road passes notice to remove his fence back from the bank 
of such stream or water-course, far enough to admit of the 
opening and construction of a road at least forty feet wide; 
and if the owner or occupant of such land should neglect 
to remove said fence, as required by such notice, it shall be 
the duty of such supervisor to call out the hands liable to 
work on roads in his road district, and forthwith remove such 
fence, doing to the owner or occupant no greater damage 
than is necessary for the removal of such fence. 

That if any dwelling house or building should stand so 
near said stream or water-course, so that a sufficient space 
is not left for such road, then such supervisor may open 
said road in the rear of such dwelling house, or other build¬ 
ing. 

When said fence shall be removed, or road changed to 
the rear of buildings, as aforesaid, then the owner of such 
land may file with the board of commissioners of the 
county where the same is situated, a claim for damages for 

(208) 1 G. & H., page 568. (209) iG.&R, p. 592, sec. 23. (210) Act of 
1863, p. 45; Act of Special Session 1865, p. 128. 

11 


148 


THE BOARD OF COMMISSIONERS. 


the removing of said fence, or the change of such road, 
and for the use of the ground over which said road shall 
pass; and upon the filing of such claim, it shall be the 
duty of such board of commissioners to appoint two repu¬ 
table freeholders of such county to view such premises, 
and assess the damages of such claimant, by reason of the 
appropriation of his said land for said road, and the re¬ 
moval of said fence. 

Such viewers shall be sworn to faithfully and impartially 
assess the damages of such claimant, and upon actual view 
of such premises, assess such damages, and report the 
same to such board of commissioners, and such board of 
commissioners may allow, and order the same to be paid 
out of the treasury of such county; or, if they deem such 
assessment to be too high, they may, in their discretion, 
appoint reviewers to make said assessment, who shall be 
sworn, and proceed in like manner to assess such damages, 
and report the same to such board, and said board shall 
order the amount of such assessment to be paid out of the 
treasury of such county. 

If such claimant shall feel aggrieved by such assessment, 
he may demand a review of such premises, and a new as¬ 
sessment of such damages, whereupon said board shall ap¬ 
point reviewers, as aforesaid, who shall review such prem¬ 
ises, and re-assess such damages; but if said re-assessment 
shall be for no greater sum than the first assessment, said 
claimant shall pay the cost of said review.(212) 

79. That any street or horse car railway company or¬ 
ganized under the laws of the State of Indiana, and operat¬ 
ing such road within any of the incorporated towns or 
cities of the State, and desiring to extend their road beyond 
such town or city limits, on any State or county road, or 
other public highway, may do so after procuring the con¬ 
sent of the board of county commissioners of such county. 
(311) 


(211) Act of Regular Sess. 1865, p. 131. (212) Act of 1865, p. 131. (213) 
Act of 1867, p. 131. 



JURISDICTION. 


149 


80. That any person, or persons, through whose land 
any State, county, or township highway heretofore located 
and established, or hereafter to be located and established, 
may run, may petition the board of commissioners of the 
proper county for permission to change the location of 
such highway on his, her, or their own land, or on the lands 
of any other person consenting thereto. 

Every such petitioner, or petitioners, shall give notice of 
his or their intention to file such petition, by posting writ¬ 
ten or printed notices thereof, in three or more public places 
in the vicinity of such proposed change. 

Upon the filing t>f such petition, and proof of notice as 
aforesaid, the board of commissioners shall appoint three 
disinterested freeholders of the county, as viewers, who 
shall meet at such time as they may appoint, and after 
having been duly sworn, or affirmed, shall proceed to view 
the premises, and they, or a majority of them, shall report 
the respective distances of the established and proposed 
highway, and the situation of the ground along each, and 
whether or not, in their opinion, the public will be materi¬ 
ally injured by such proposed change, and shall file their 
report with the county commissioners, at their next session 
thereafter. 

Upon the filing of such report, and before action thereon, 
if the report be favorable to such change, any freeholder 
may file his remonstrance against the same, stating therein 
the reasons why such change ought not to be made, and an 
issue may be made thereon; and if the report of the view¬ 
ers be unfavorable to such change, the petitioner, or peti¬ 
tioners, may make an issue thereon, any such issue shall 
be tried before the board of commissioners, as other 
issues of facts are tried, and if, upon the report of the 
viewers, or upon any issue tried as above, the board shall 
be of opinion that the public will not be materially injured 
by such proposed change, they shall make an order grant¬ 
ing permission to the petitioner, or petitioners, to make such 
change, and upon satisfactory proof, then or thereafter, 
that the new road has been opened and improved, equally 
convenient for travelers, the board shall make an order va- 


150 


THE BOAED OP COMMISSIOHEBS. 


eating so much of the former highway as lies between the 
different points of intersection. 

All the costs of such proceeding shall be paid by the 
petitioner, or petitioners: Provided , that when a remon¬ 
strance is filed, and the issue found against the remonstrant, 
he shall pay all the costs occasioned thereby. (213) 

Sec. 1 . The boards of commissioners of each county of 
this State in which by popular ballot the people have here¬ 
tofore declared in favor of the payment of a bounty to such 
of the soldiers of said county as enlisted and entered the 
service of the United States for the term of three years or 
during the war of the late rebellion, and were duly accred¬ 
ited to said county, are hereby authorized and empowered 
to issue bonds or orders to such of said soldiers as have 
been honorably discharged from said service, and to the 
legal representatives of such soldiers who so enlisted and 
were accredited as above, and who were killed or died 
while in said service, and to the legal representatives of 
such of said soldiers as have died since their discharge 
from said service, for one hundred dollars, less the amount 
already received as bounty from such county by said soldier, 
his heirs or representatives, on account of such enlistment 
and credit. 

Sec. 2. Such bonds or orders shall be issued by said 
board at their next regular meeting after the filing and 
proof of the claim for such bounty, and shall be made pay¬ 
able within at least eighteen months after the date thereof, 
and shall bear six per cent, interest from the date thereof. 

Provided , however , That the provisions of this act shall 
apply only to counties in which the commissioners, under 
instructions by popular ballot, have actually heretofore pre¬ 
pared bonds for the whole or a part of the persons to be 
benefited by this act, within their county, and where such 
bonds were afterwards destroyed, before delivery to the 
parties for whom they were intended; and provided further , 
that the provisions of this act shall not apply to any county 
which shall have fully paid such bounties to all soldiers fill¬ 
ing the quota of such county according to the terms of 

(213) Act 1867, p. 131. 



JURISDICTION. 


151 


tlie order of the board of commissioners allowing such 
bounties before the passage of this act. 

The board of commissioners of such counties are hereby 
authorized and empowered to make an assessment and levy 
of taxes, and provide such other ways and means for the 
payment and redemption of such bonds and orders as said 
board may deem just and advisable, such taxes to be col¬ 
lected at the same time and in the same manner that other 
taxes are collected. (217) 

82. In any county where the whole fees of a clerk, 
auditor, or treasurer amount in the aggregate to less than 
one thousand dollars per annum, the board of commission¬ 
ers may allow such officer such an amount as they in their 
discretion may deem just and proper, but such allowance 
shall not exceed three hundred dollars for any one officer 
for any one year. (218) 

82. When two only of the members shall attend the 
meeting of the board, and a division shall take place 
on any question, it shall be continued until the next meet¬ 
ing before it shall be finally determined. 

84. They must cause to be recorded in a book kept for 
that purpose, the proceedings and their determinations 
touching all matters properly cognizable before them, and 
all books, accounts, vouchers, papers and documents touch¬ 
ing the business or property of the county, shall he care¬ 
fully kept by the auditor, and open to the inspection of 
any person. They must sit with open doors. The aud¬ 
itor of the county must attend all their meetings, and 
must keep a correct record of all their proceedings. They 
being a court of limited jurisdiction, their record must 
show that their acts and proceedings have been in strict 
accordance with the law. They can speak in no other way 
save by their record. Each day’s proceedings should be 
entered at length in their record and signed by each mem¬ 
ber of the board, at the close of the proceedings. They 
are a court of record under our statute.(220) They must 
use a common seal. 


(217) Act 1873, pp. 47 , 48. (217) Act approved March 8, 1873. (120) 5 
Black. 325; 3 Ind. 497; 15 Ind. 250; 1 G. & H. p. 249, secs. 7, 8, 10, 14, 15. 



152 


THE BOARD OP COMMISSIONERS. 


CHAPTER Yin. 

FORMS. 

The powers and duties of the Board on petition to declare any 
Town in their County a body corporate . 

The board of commissioners have power to declare any 
town within their county a corporation. Bat in order to 
enable them to do this the citizens of the territory in¬ 
tended to be incorporated, must cause an accurate survey 
and map to be made of all the territory intended to be em¬ 
braced within the corporate limits of such town, the survey 
mu$t be made by a practical surveyor, and must show the 
course and distance of the boundaries of the said territory. 
It must also show the exact quantity of land intended to be 
included in the corporation, the accuracy of such survey 
and map shall be verified by the affidavit of such surveyor, 
written thereon or annexed to the map. They must also, 
not more than thirty, nor less than twenty days, before the 
time of the presentation of the petition to the board of com 
missioners, cause an accurate census to be taken of the resi¬ 
dent population of such territory, which census shall show 
the name of every head of a family residing within such 
territory on the day or days the census are taken, and the 
number of persons belonging to each family. 

The truth of the report of the census taken must be sup¬ 
ported by the affidavit of the person taking the same. 

Form of surveyor’s affidavit: 

STATE OF INDIAN A,\ 

Vermillion County, j ss * 

M. G. R. being duly sworn, upon his oath, says that he is 

a practical surveyor, and that he did on - day of 

-, 1872, survey a certain piece of land situated in sec¬ 
tion 8, township 17 north, range 9 west, in Vermillion 
county, Indiana, and that the above map shows the correct 
course and distance of the boundaries cf said territory or 




FORMS. 


153 


piece of land, and that the aforesaid tract of land contains 
six hundred and forty acres. M. G. It. 

Subscribed and sworn to before me, this - day of 

-, 1872. 

-, J. P. [seal.] 


Form of census-taker’s affidavit: 


STATE OF INDIANA, \ q 
Vermillion County. J 

John Smith being duly sworn, upon his oath, says he did 
on-day of-, take the census of a certain terri¬ 

tory situated in section 8, township 17 north, range 9 west, 
in Vermillion county, Indiana, bounded as follows: com¬ 
mencing at the southeast corner of the section, township 
and range aforesaid, running thence west one mile, thence 
north one mile, thence east one mile, thence south one mile, 
to the place of beginning, and that the above report shows 
the correct number of the population of said territory and 
the head of each family residing in the same. 

JOHN SMITH. 


Subscribed and sworn to before me this-day 

1872. 


-, J. P. [seal.] 


After the survey map and census report have been com¬ 
pleted and verified, they must be left at some convenient 
place within the territory intended to be incorporated for 
examination by those having an interest in the application 
for a period of not less than twenty days before the filing 
of the petition with the board. At the expiration of the 
twenty days, a petition must be gotten up and signed by 
the applicant, and also by not less than one-third of the 
whole number of qualified voters, residing within such ter¬ 
ritory, the petition must set forth the boundaries of the ter¬ 
ritory, the quantity of land embraced in the same, accord¬ 
ing to the survey and the resident population according to 
the census thus taken, and the petition must have attached 
thereto, or written upon it, an affidavit verifying the fact as 
alleged therein. 







154 


THE BOARD OF COMMISSIONERS. 


Form of the petition. 

To the Honorable Board of Commissioners of Vermillion County: . 

We, the undersigners, would represent to your honors, 
that we are legal voters of Vermillion county, Indiana, and 
that we reside in the following territory of land, situated in 
the county and State aforesaid, which, according to the sur¬ 
vey made by M. Gr. R. a practical surveyor, on-day of 

-, 1872, bounded as follows, commencing at the south¬ 
east corner of section 8, township 17 north, range 9 west, 
running thence west one mile, thence north one mile, thence 
east one mile, thence south one mile to the place of begin¬ 
ning, containing six hundred and forty acres. This terri¬ 
tory, according to the census taken by John Smith, on- 

day of-, 1872, contained fifteen hundred resident 

population. We, therefore, pray your honors that you make 
an order declaring said territory with the assent of the quali¬ 
fied voters of said territory to be an incorporated town by 
the name of Toronto, and we will ever pray. 

JOHN SMITH, SETH WHITE, 

THOMAS JONES, HENRY JONES. 

STATE OF INDIANA, 1 q 

Vermillion county. j ss ' 

John Smith, being duly sworn, upon his oath, says that 
the facts set forth in the above petition are true. 

JOHN SMITH. 

Subscribed and sworn to before me this-day of- 

1872. J. p., [seal.] 

On the presentation of this petition to the board have the 
auditor to mark it filed. You must then make proof by 
affidavit or otherwise that the petition was signed by not 
less than one-third of the qualified voters of the territory 
proposed to be incorporated; that the survey map and cen¬ 
sus report are left at some convenient place in said territory 
for examination by those having an interest in the applica¬ 
tion more than twenty days before the filing or presentation 
of the petition. And if on examination of the petition, 
and after hearing the proof the Board of Commissioners 




FORMS. 


155 


are satisfied that the requirements of the statute have been 
fully complied with, they must then make an order declar¬ 
ing that such territory shall, with the assent of the qualified 
voters thereof, he au incorporated town by the name 
mentioned in the petition, which name must differ 
from that of every other town in this State. They must 
also designate in their order a day for the qualified voters, 
residents in said territory, to meet and hold an election; the 
day named must not be more than one month from the time 
the order is entered of record. The hoard must give ten 
days’ notice of the time and place of holding such election 
by publication in a newspaper, if one be published in said 
territory, and by posting up copies of said notices, not less 
than ten in number, at the most public places in said pro¬ 
posed incorporated town. The law does not designate who 
shall put up the notices, but we think that the sheriff of the 
county is the proper man to perform this work. 

Form of Notice: 

Notice. 

Notice is hereby given, that the board of commissioners 
of Vermillion county, Indiana, at their June term, 1872, on 
the petition of one-third of the qualified voters of a certain 
territory situated in section 8, township 17 north, range 9 
west, in Vermillion county, Indiana, commencing at south¬ 
east corner of said section, running thence west one mile, 
thence north one mile, thence east one mile, thence south 
one mile, to the place of beginning, declared that such ter¬ 
ritory to be an incorporated town with the assent of the 
qualified voters of said territory, by the name of Toronto, 
and did then and there designate in their order the 10th 
day of July, 1872, as the day for the qualified voters of 
said territory to meet at the office of J. H., on out lot 6, in 
said town, then and there to take a vote whether said terri¬ 
tory shall be an incorporated town by the name aforesaid. 
The voters of said territory will therefore take notice that 
the election will be held as aforesaid. 

In witness whereof I have hereunto set my hand and 
affixed seal, this June, 1872. J. P. Y., Auditor. [Seal.J 


156 


THE BOARD OF COMMISSIONERS. 


At the time appointed for the holding of the election, 
the qualified voters must meet and elect three of their 
number inspectors, who, after being duly chosen and quali¬ 
fied by taking an oath to faithfully discharge their duties, 
they must then select one of their number as clerk of the 
board. They must without delay proclaim to the meeting 
that the poll is now opened, and that they are ready to 
receive the ballots of the voters. The voting must be by 
ballot, and they must have either written or printed upon 
them the word Yes , or the word No. If the majority of 
the ballots given shall have thereon the word No, the voters 
of such territory shall be deemed to not have assented to 
the incorporation thereof as a town, and no further pro¬ 
ceedings can be had. But if the majority of the ballots 
given shall have thereon the word Yes, such territory shall 
from the time of pronouncing the verdict by the inspector 
of the eleetion be deemed an incorporated town, to have a 
continuance thereafter by the name and style specified in 
the order of the board of county commissioners. And the 
inspector of such meeting shall make a statement showing 
the whole number of ballots cast at such meeting, the num¬ 
ber having the word Yes thereon, and the number having 
the word No thereon, which statement shall be verified of 
such inspectors, and shall be returned to such board of 
commissioners at their next session; who, if satisfied of 
the legality of the election, must make an order declaring 
that said town has been incorporated by the name adopted, 
which order shall be considered evidence of such incorpor¬ 
ation.^!..) 

(221) 1 G. & H., p. 620-621. Act 1859, p. 209. Redden v. The Town of 
Covington, 229 and 118. 



FORMS. 


157 


CHAPTER IX. 

FORMS. 

How Incorporated Towns may Annex Contiguous Territory 
that has not been Platted or Recorded. 

The statute provides that whenever any incorporated 
town in this State shall desire to annex contiguous territory 
which has not been platted or recorded, the trustees of the 
town must present to the board of county commissioners 
of their county a petition, setting forth in such petition the 
reasons why they desire such annexation, accompanying 
the petition with a plat or map accurately describing by 
metes and bounds the territory proposed to be annexed; 
the correctness of such map or plat must be verified by affi¬ 
davit of some person who is acquainted with the facts. The 
trustees must give thirty da}-s notice of the time the peti¬ 
tion will be presented to the board of commissioners, by 
publication in some newspaper published in such town, and 
if there is no paper published in the town, then by notice 
published in some newspaper of the county, and if there is 
no paper published in neither the town or county, then by 
posting up notices in not less than five public places in such 
town. Said notice should contain the description of the 
territory proposed to be annexed, giving its exact bounda¬ 
ries, and it would be safer to set out the names of the per¬ 
son or persons owning the land in such territory. 

Form of petition: 

To the Honorable Board of Commissioners of Vermillion county: 

We, the undersigned, trustees of the incorporated town 
of Newport in said county, and State aforesaid, w’ould rep¬ 
resent to your honorable board that the aforesaid town 
desires to annex the following contiguous territory situated 
in said county, to her, to become a part and parcel of her 
incorporated territory, to be subject to the control of the 
trustees of said town in the same way and manner that the 


158 


THE BOARD OP COMMISSIONERS. 


territory now included in her corporated limits is subject, 
to-wit: Commencing at the southwest corner of lot No. 
12, block five, in the town of Newport, running thence west 
one-quarter of a mile to a stake, thence south one-half mile 
to a stake, thence east one-quarter of a mile to a stake, 
thence north one-half mile to the place of beginning. The 
land thus proposed to be annexed belongs to J. H., that 
said territory has never been platted or recorded, except by 
order of your petitioners for this petition; that said town 
desires the annexation of said territory for the following 
reasons: 1. That it is necessary for the accommodation, 

growth and business of the town, &c. That the terri¬ 
tory now proposed to be annexed to the said town of 
Newport has been carefully platted or mapped, (a copy of 
which is marked A, and attached hereto, and made a part 
of this petition) that the said map or plat describes accu¬ 
rately the territory proposed to be annexed by metes and 
bounds. We therefore pray your honors to make an order 
declaring said territory above described as being a part of 
the aforesaid incorporation. 



STATE OF INDIANA,) 

Vermillion County. J 

J. B., being duly sworn, upon his oath says, that the facts 
set forth in the above petition are true. 

Subscribed and sworn to before me, this-day-, 


1873. 


J. P. [Seal.] 


NOTICE. 


Notice is hereby given that there will be a petition pre¬ 
sented to the board of commissioners of Vermillion county, 
at their June session, 1873, by the trustees of the incorpor¬ 
ated town of Newport, praying said board to annex to the 
aforesaid town the following contiguous territory, situate 
in Vermillion county, Indiana, described as follows, to-wit: 
(here give a full description by metes and bounds of the 
territory to be annexed.) That the above territory is 



FORMS. 


159 


owned by J. B.(28) The annexation of the aforesaid ter¬ 
ritory is asked for the following reasons, to-wit: 1. It is 
necessary for the accommodation, growth and business of 
the town. 2. That said petition will at said session be 
presented and determined; of this fact all will take notice. 
(29) This May 1, 1878. 



A copy of the notice must be served on the owner, or 
owners, of such territory.(21) 

On the presentation of the petition to the county board, 
any person living in the incorporate town, or the adjacent 
territory that is proposed to be annexed, may appear and 
resist the prayer of the petition, or make any other de¬ 
fense known to the law. If the petition is insufficient or 
notice defective, or if any other proceeding.required to be 
done has not been performed according to law, they can 
take advantage of that by motion, plea, or in any other 
method known to the practice. The board must sit as a 
court to determine any question that may arise in the case. 
They should take every question that may arise upon the 
pleadings, &c., in its proper order, and give it a careful 
consideration; and after inspecting the map and hearing 
the testimony, if they are 6f the opinion that the prayer 
of such petition ought to be granted, they must cause an 
entry to be made on the order book, specifying the terri¬ 
tory annexed, with the boundaries thereof according to the 
survey, which entry, or an attestated copy shall be conclu¬ 
sive evidence in all courts of such annexation.(62) 

(28) The name of the owners need not be set out if the land is sufficiently 
described to identify it. 18 Ind. 203. But in order to prevent mistakes it is 
better to set it out. (29) 1 Res. G. & H. p. 630 secs. 51, 52. (31) 1 Res. G. 

& H. p. 630. (34) 1 Res. G. & H. p. 630, secs. 51, 52. 

Note. —This was a proceeding by the authorities of an incorporated town to 
annex a territory, or to extend the corporate limits over additional territory. It 
may be fairly inferred from the notice and petition, that it was intended as a 
proceeding under the 51st: section, p. 630, 1 Res. by G. & H., and it was ini- 




160 


THE BOARD OF COMMISSIONERS. 


tiated by the trustees of said town. The notice specified in said section, was 
given by publication in a newspaper; that, and the petition presented, each de¬ 
scribed the territory to be annexed by metes and bounds, and was then followed 
by this allegation, “containing the land of,” &c., here giving the names of some 
thirty persons. The persons so named appear to have been made defendants. 
Upon the presentation of said petition to the board of county commissioners, a 
part of said persons appeared, for others a guardian ad litem was appointed— 
they being minors; others still were defaulted. The attorney who appeared for 
a part of said persons, also showed, by affidavit, that one Galay was not named 
in said petition and notice as being the owner of land in said named territory; 
was then and had a long time been the owner of a part of the said territory; 
and that his deed was duly of record; and that he was a non-resident of the 
county, being a resident of Switzerland county, and that he had not been noti¬ 
fied of the said application. Upon this a motion was made to make him a 
party and continue, that he might be notified. This motion was overruled. 
An order was entered annexing said territory. From this an appeal was taken 
to the circuit court. There a motion was made, based upon said affidavit, to 
certify said case to the board of commissioners,'that the said Galay might be 
made a defendant. The motion was overruled. An answer was then filed by a 
part of the defendants who had appeared in the commisioners’ court, setting up 
the same fact as to said Galay by way of abatement. A demurrer was sustained 
to the said answer. It is not certain that a fair and reasonable construction of 
section 51 referred to, would exact from persons seeking to have territory an¬ 
nexed, the necessity of naming in the notice of such intended application each 
person owning parts of said territory if the same was otherwise therein so de¬ 
scribed and identified as to give such person notice that their interest was to be 
involved. In the case at bar the description of the territory sought to be an¬ 
nexed, as contained in the notice, is as follows : commencing at the north-west 
corner of Monfort’s addition, etc., thence north on the half section line to the . 
south side of the Michigan road, thence east to the west line of Hendricks’ ad¬ 
dition to, &c., thence south along said line to the north line of the original plat 
of said town, thence west to the place of beginning, containing the land of, &c. 
That part alleged to be owned by Galay, is stated to be a part of section 2 , town¬ 
ship 10 , range 9 , beginning on the line of donation to the town of Greensburg, 
eighty-one links east of the north-west comer of the plat of said town, at a * 
stake in the Michigan road, thence north 122 poles to the line of donation, 
thence west 8 poles to the place of beginning. Was the publication of a 
notice, embodying the above statement of metes and bounds, sufficient to give 
jurisdiction of said Galay, containing at the same time the statement following, 
that the said described bounds contain the land of certain persons, among whom 
the said Galay was not named ? 

We think it was sufficient. 

We have already intimated that it was not necessary in the notice to name 
the holders of the land intended to be embraced in such annexation. The de¬ 
scription of territory by metes and bounds being sufficient in said notice. The 
additional allegation, therefore, professing to give the names of such land own¬ 
ers, in case at bar, having been made in such form as to be distinct and capable 
of separation from such description without impairing it, we think should be 


NOTES. 


161 


treated as mere surplusage. It is insisted by the appellee that the appeal should 
be dismissed because errors are assigned only by a part of the defendants be¬ 
low, and the balance were not summoned and sued. The record shows that 
the appeal was prayed by all the defendants, and bond executed for all; in that 
shape the record was sent up. A part only assigns errors in this court. As to 
the balance who do not, the appeal will be dismissed for want of such assign¬ 
ment, as the same is equivalent to a declination to join in prosecuting the appeal 
further. Per curiam —The judgment is affirmed with costs: 

Woodfill and others tfs. The Town of Greensburgh, 18 Ind. 203 . 

This was a proceeding by petition, instituted by the Board of Trustees of the 
Town of Crawfordsville before the Board of Commissioners of Montgomery 
county, for the annexation to the said town of certain territory contiguous there¬ 
to, and not platted, or laid off, or recorded. The petition describes the territory 
sought to be annexed, is accompanied by a plat which also describes it, and which 
is verified by affidavit, and designates the person or persons to whom each piece 
of ground included within the bounds of said territory belongs. And further, 
the petition sets forth the reasons why such annexation is desired, which are in 
substance as follows: 

1 . The limits of the town as they now exist are such as to give great inconve¬ 
nience to the citizens and officers of the town, and also make the burthen of tax¬ 
ation very unequal. 

2 . The present boundary, including the platted lots, divide the town into sepa¬ 
rate divisions, leaving property between the divisions thus formed, and in thickly 
populated parts of the town, entirely without said boundary, causing some of the 
streets to lie partly within and partly without said town. 

3 . There are at this time about sixty comers to the boundaries of the town, 
whereas, should the boundaries now prayed for be established the limits of the 
corporation would then be a rectangular parallelogram, and this parallelogram 
would be formed by including the extremes of the present corporation on the east 
and west and on the north and south, making it more convenient for the citizens 
and far easier for the officers of the corporation to perform their respective duties. 

4 . Many persons outside of the present corporation, and without the bounda¬ 
ries prayed for, have attached themselves thereto for school purposes, and it is 
but just that they should assist, by means of their taxes, in supporting said schools. 

5 . The corporation is in need of the increased revenue which would result 
from taxes levied upon the territory sought to be annexed, for the following pur¬ 
poses : 

1 . To provide more suitable and adequate means for the prevention of fires. 

2 . For the erection and keeping in repair of a suitable house for the conveni¬ 
ence and advantage of the citizens of the town. 

3 . For the purpose of purchasing, laying out and regulating a suitable and 
convenient town cemetery. 

Notice of the petition appears to have been duly published in a newspaper 
printed in said town, and a copy of the notice thus published appears to have 
been served on each of the owners of the respective pieces of ground embraced 
in the territory proposed to be annexed. The record shows that the commission¬ 
ers, upon the final hearing, &c., ordered that such annexation be made, and from 
their decision there was an appeal. In the circuit court, to which the appeal 


162 


THE BOARD OF COMMISSIONERS. 


was taken, Isaac Elston, John Fisher and Ambrose Whitlock, the owners of part 
of the territory, appeared and moved to dismiss the cause upon two grounds: 

1. The petition does not show sufficient reason for annexing contiguous,, terri¬ 
tory. 

2 . That proper parties have not been brought before the court. 

This motion the court overruled, and thereupon they answered the petition . 1 
The issues were submitted to the court, who found for the plaintiff, and having 
refused a new trial', rendered judgment, &c. Elston, Fisher and Whitlock ap¬ 
peals to this court. 

The statutes relative to the incorporation of towns, &c., contain these provi¬ 
sions : 

Sec. 50 . “ Whenever there shall be lots laid off and platted adjoining such 

town, and a record of the same is made in the recorder’s office of the proper 
county, the trustees may, by a resolution of their board, extend the boundary of 
such town so as to include such lots, &c. 

Sec. 51 . “When any town shall desire to annex contiguous territory thereto, 
not platted or recorded, the trustees shall present to the Board of County Com¬ 
missioners a petition setting forth the reasons for such annexation, and shall ac¬ 
company the same with a map or plat accurately describing by metes and bounds 
the territory proposed to be attached, which shall be verified by affidavit; such 
trustees shall give thirty days’ notice by publication in a newspaper printed in 
such town, &c., a copy of such notice shall be served on the owner or owners 
of such territory if known and are residents of such county.” 1 Res. by G. & 
H., page 630 . 

This proceeding is based on section 51 just recited, but the appellant insists 
that that section is vague, indefinite and confers no right to proceed under it. 

We think otherwise. By section 50 , the trustees are empowered to annex by 
resolution territory adjoining the town which has been laid off into lots and plat¬ 
ted, and the plat thereof recorded. And by section 51 the legislature plainly" 
intended to confer power upon the Board of Commissioners, on petition of the 
trustees, to order the annexation to a town of any adjacent territory not embraced 
in section fifty; in other words, all such contiguous territory as was not included 
in a recorded plat. This construction seems to be correct, and being so the al¬ 
leged vagueness of the section is not perceivable. The Mayor, &c., vs. Weems, 
5 I nd - 547- 

Another objection to the proceeding is, that the petition does not show suffi¬ 
cient reason for annexing the the territory. The statute requires the reasons for 
the annexation to be set forth in the petition. Without them it would be defec¬ 
tive. In this case it seems to us they are sufficient. There is evidently enough 
of them; in our opinion they plainly show that the annexation sought was nec¬ 
essary for the accommodation of the growth and business of the town. 

Again, it is said that the petition should be, but is not, verified by affidavit. 
There is nothing in this objection. The statute requires the map or plat to be 
verified, but not the petition itself. But there is another ground upon which the 
appellants rely for reversal. They contend that the parties directly interested 
have not been properly brought before the court. This, we think, is a mistake. 
The petition describes the territory sought to be annexed, designating the person 
or persons to whom each piece of ground included in the bounds of said terri- 


HIGHWAYS. 


163 


tory belongs; and the record shows affirmatively that the publication required by 
the statute was duly made, and a copy of the published notice was served on the 
owners of said pieces of ground. The requirements of the statute as to the 
mode of bringing parties before the court appears to have been at least substan¬ 
tially pursued. If true, as stated in the appellants’ brief, that the owners of one 
of the pieces of ground described as a part of the territory are designated in the 
notice of the application as the heirs of Anthony Hamilton, without giving their 
individual names, but the ground of which they were owners was described in 
the notice, and that being the case, it was not essential that each heir should be 
named. Woodfill vs. The Town of Greensburg, 18 Ind. 203. 

Per Curiam .—Judgment is affirmed, Elston et al. v. The Board of Trustees 
of Crawfordsville, 20 Ind. 272. 


CHAPTER X. 

HIGHWAYS. 

Highways , how Located and Established—Located and 
Changed. 

A highway, under the English law, is a place over which 
a right is enjoyed by the public of walking, driving or 
riding, and it is often called the Queen’s highway. But in 
this country the word highway seems to be used in a generic 
sense, and has a variety of significations and meanings. 
For it is used indefinitely as a name for all kinds of public 
ways, whether they be footways, carriageways, bridges, 
turnpikes, roads, railroads, canals, ferries, or navigable riv¬ 
ers. The right of way, or the privilege that members of 
society exercise over the property of an individual for the 
public good, was defined and understood at an early day 
after the organization of society. For as far back as sacred 
or profane history leads us, these rights seem to have been 
exercised, and highways to have been established. The 
principle upon which the right of eminent domain, or the 
right of the public to take and use the property of an indi¬ 
vidual rests, is upon the maxim that the rights of an indi- 
12 


164 


THE BOARD OF COMMISSIONERS. 


vidual member of society must yield to the demands and 
claims of the whole community. When men enter into 
society they give up a part of their natural rights in order that 
they may be better protected in others. And under our repub¬ 
lican form of government an individual is required, when 
he enters into society, to submit to all laws enacted by the 
majority of the adult men of the government in which he 
lives. As the government is organized for the purpose of 
regulating the conduct and actions of men in society, in 
order for it to accomplish and carry out the object of its 
creation, it must have the necessary means; and for the 
purpose of obtaining the necessary means, it must exercise 
a kind of supervisory power over both the person and 
property of all its subjects. And as every man has the 
right to move from place to place, for either personal enjoy¬ 
ment, or for the benefit and enjoyment of others, and also 
the right to transfer the products of his labor to market, 
and to carry on commerce and trade with all men in every 
section of the country, the question as to how this shall be 
done becomes a question of great importance both to the 
public and each individual of the community. For the way 
that might he the most convenient for the public to travel 
over the land of an individual might interfere materially 
with his private enjoyment. Hence there would at once 
arise a conflict of interest that must he adjusted. Under 
such circumstances it is the duty of the government to 
interfere and adjust the difficulty. And in settling the 
question, the claims of the public are considered as para¬ 
mount to the claims of the individual. If this was not the 
case, society would be surrounded with innumerable diffi¬ 
culties. But in enforcing the claims of society the right of 
each individual should be respected and upheld as far as 
practicable, and the public should not encroach upon the 
rights of individuals, except in cases where public utility or 
necessity requires it. And in enforcing its claims, it should 
take no more property than is demanded of him by the 
exgencies of the community, and should do the least possi¬ 
ble injury to the individual. The private interests and 
rights of an individual should never be sacrificed to a 


HIGHWAYS.. 


165 


greater extent than is necessary to secure to the public the 
required or necessary accommodation. The government, in 
the exercise of its supervisory power, is not authorized, and 
would be much less justified in taking the property of one 
individual and giving it to others. The rights of all should 
be equally respected, and each required to bear his propor¬ 
tional share of the burthen of taxation, and of the neces¬ 
sary expenses incurred in procuring for the public those 
rights and privileges that are so essential to the welfare and 
happiness of the members of society everywhere. This 
being the case, no individual should be required to surren¬ 
der up to society or the public more than his proportional 
part. And if the interest of society demands of him more 
than this, he should receive in lieu of it something of equal 
value. And the framers of our National and State consti¬ 
tutions, for the purpose of protecting each individual in 
the enjoyment of his property, and for the further purpose 
of compelling each member of society to bear his propor¬ 
tional part of the burthen of taxation, and no more, incor¬ 
porated into those palladiums of our civil rights the pro¬ 
vision that private property shall not be taken for public 
use without just compensation.(200) 

But the question very frequently arises a3 to the extent 
of the interest the public acquires in the land of an individ¬ 
ual by the exercise of this superior power. Have they the 
fee-simple absolute, a life estate, or merely a lease of the 
land ? The public, under such circumstances, has merely 
the right to use the land; or, in other words, they have 
acquired an “ easement,” which the owner of the land can 
not lawfully extinguish or unreasonably interrupt. But 
the soil and the freehold remain in the individual or owner, 
although incumbered with the way. And every use to 
which the land may be applied, and all the profits which 
may be derived from it consistently with the continuance 
of the easement the owner can lawfully claim.(100) And 

(200) Article I, sec. 21 of State Constitution, (1 G. & H.) Section 5 of the 
Amendment of the Constitution of U. S., 1 G. & H., p. 22. 

For authorities on the points discussed above, see Edgerton and others v. Huff, 
26 Ind., 35; Warie v. Smith, 5 pages chancery report, 13’/; The Trustees v. 
Rochester Railroad Company, 3 Hill, 567. 



166 


THE BOARD OF COMMISSIONERS’. 


as soon as the public cease to use the right thus acquired* 
the remainder of the property reverts back to the original 
owner. (191.) 

But the right to take private property for public use, 
which primarily belongs to the government, is frequently 
delegated to its numerous agents and officers, who are 
authorized to transact the business by virtue of an act of 
the law-making power. And the public may sometimes 
acquire this right by the use of the property, with the assent 
of the owner, for a certain length of time, and by this 
means raise in their favor a conclusive presumption of a 
right by dedication. And in this State there are three 
methods of acquiring this right. 1. By expressed grant. 
2. By dedication, arising by presumption from a continued 
use of the place for a considerable period of time by the 
public as a public highway, with a knowledge thereof by 
the owner, and without objection on his part. 3. By order 
of the board of commissioners of the county. 

The first one of the methods needs no comment, because 
the right of the public must rest upon his voluntary act; 
that act must be expressed in some public way. But the 
second method of establishing highways is one that is sur¬ 
rounded with almost innumerable difficulties, and has been 
the source of much bitter acrimony among neighbors, and 
the father of many hotly-contested law suits. We shall 
attempt, as far as the size of this work will admit, to discuss 
this question in such a way as to enable all to see what the 
public must do in order to acquire this right by this method. 
Prof. Greenleaf, in his able w^ork on Evidence, says: 

The existence of a public way is proved, either by a 
copy of the record, or by other documentary evidence 
of the original laying out by the proper authorities, 
pursuant to statute, or by evidence either of immemorial 
usage, or of dedication of a road to the public use. In 
the latter case two things are essential to be proved:—the 
act of dedication and the acceptance of it on the part of 
the public; and this may be either limited and partial, as 



HIGHWAYS. 


167 


of a way excluding carriages, or it may be absolute and 
total. Nor is it necessary that the dedication be made 
specifically to a corporate body capable of taking by grant; 
it may be to the general public, and limited only by the 
wants of the community. If accepted and used by the 
public in the manner intended, it works an estopple in 
pais , precludes the owner, and all claiming in his right, 
from asserting any ownership inconsistent with such use. 
The right of the public does not rest upon a grant by 
deed, nor upon a twenty years’ possession; but upon the 
use of the land with the assent of the owner for such a 
length of time that public accommodation and private 
rights might be materially affected by the interruption of 
the enjoyment. The issue is therefore a mixed question of 
law and facts, to be found by the jury under the direction 
of the court, upon the consideration of all the circum¬ 
stances. The length of time of the enjoyment furnishes 
no rule of law on the subject which the court can pro¬ 
nounce without the aid of a jury, unless it amounts to 
twenty years; but it is a fact for the jury to consider, as 
tending to prove an actual dedication, and an acceptance 
by the public. Hence a jury have been sustained in find¬ 
ing a dedication after four or five years of enjoyment. In 
another great case, which was much contested, six years 
were held sufficient; and in another it has been held that 
after the use of a way five years without prohibition, or 
any visible sign that the owner intended to preserve his 
right, the public title was complete. It is a question of 
intention, and therefore may be proved or disproved by 
the acts of the owner and the circumstances under which 
the use has been permitted.(192) And our supreme court, 
in the case of Hays vs. The State, say: “However this 
may be, the evidence offered by the State was sufficient to 
secure the finding. Whatever may have been the condi¬ 
tion of other parts of the road, a space passing through 
the defendants’s land had been used as a highway for fifteen 
years. This he obstructed by building a fence across it. 


(192) 2 Greenleaf on Evidence, sec. 662. 



168 


THE BOARD OF COMMISSIONERS. 


The use thus proved was at common law sufficient evi¬ 
dence of dedication or grant. The appellant insists that if 
a highway can be established by less than twenty years’ 
use, it will render superfluous and unnecessary a provision 
of the statute which declares that all public highways 
which have been used, or may hereafter be used as such, for 
twenty years or more, shall be deemed public highways. 
"We think otherwise. Twenty years’ use this statute makes 
an absolute bar; but Mr. Greenleaf says (and we think the 
authorities sustain him) that “the right of the public does 
not rest upon a grant by deed, nor on twenty years’ posses¬ 
sion, but upon the use of the land with the assent of the 
owner for such a length of time that the public accommo¬ 
dation and private right might be materially affected by 
the interruption of the enjoyment.”(192) And in the case 
of The State vs. Hill the same court says, that in the case 
of Hays vs. The State, it was held that the statute, though 
it makes twenty years’ use an absolute bar, does not impair 
the right of the public to insist upon a dedication in ac¬ 
cordance with the common law rule; and under that rule 
it has been decided that the unopposed use of the high¬ 
way by the public, over the land of an individual who is 
cognizant of the fact, for a much less period than twenty 
years—say four or five years—was sufficient to raise the pre¬ 
sumption of dedication. Indeed, the weight of authority 
seems to be that the use of the land for a highway for such 
a length of time that public accommodation and private 
right might be materially afiected by an interruption of 
the enjoyment, would be evidence that the owner intended 
a dedication to the public.(193) And in the case of IIol- 
craft vs. King and others, the same court held—“ Public 
highways may be established in this State, first by order 
of the board of commissioners of the county; secondly, by 
express grant; thirdly, by a dedication arising by presump¬ 
tion from a continued use of the place for a considerable 
period of time by the public, as a public highway, with a 
knowledge thereof by the owner, and without objection on 


(192) 8 Ind. 425. (193) 10 Ind. 219. 


HIGHWAYS. 


169 


his part; and in this case the finding of the court shows 
that the way obstructed by the plaintiff had been opened, 
worked and used by the public as a public highway, for a 
continued period of fifteen or sixteen years, of which the 
plaintiff had full knowledge, if not for the whole period 
for at least eight or ten years, and that during all the lattei 
period he also knew it was not on the section line. With 
a knowledge of these facts he not only did not object, but 
on the contrary, some four or five years prior to the time 
of the alleged trespass, voluntarily opened an extention 
thereof thirteen rods, so as to connect the Newcastle road, 
and thus invited the public to use it as a public highway, 
and it was accordingly so used and worked. These facts, 
we think, raise a clear legal presumption of dedication by 
the plaintiff* of the ground occupied by the road as a public 
highway. Nor can the fact that the plaintiff* opened a way 
on the section line for the use of the public affect the ques¬ 
tion. A public highway, however established, cannot be 
altered or changed at the will of the land owner.(194) 

The court of appeals of the State of New York, in the 
case of Denning vs. Roome, in commenting upon this ques¬ 
tion, says, “ The evidence shows that an uninterrupted en¬ 
joyment of this part of the street was had by the public 
for nineteen years. Did this occupation debar the plain¬ 
tiff* from all rights to take possession of the premises in 
question? It has not been determined what length of 
time individual property must be used as a public way to 
create a presumption of a dedication of it to the public; 
and the reason why no precise time has been fixed, proba¬ 
bly is that the presumtion does not depend alone upon the 
length of time the use continues; other circumstances are 
to be brought into consideration which may extend or con¬ 
tract the period at which the presumption attaches. It is 
said by a late writer on presumptive evidence, that when 
the intention is plainly and significantly shown from the 
onset, submission to the public use for six or eight years, 
or possibly even for a less period, would exclude the owner 


(194) 25 Ind. 352; 7 Ind. 706. 



170 


THE BOARD OF COMMISSIONERS. 


of the soil from reasserting his ancient rights. AVhether 
the right in the public attaches after five or six years or 
not till the expiration of twenty, depends upon the circum¬ 
stances of each particular case.(195) 

It was a contested question in the Kingdom of England 
for years whether a cul-de-sac could become a public high¬ 
way by use. The supreme court of the State of New 
York, in the case of Holden vs. The Trustees of Cold¬ 
spring, held that a road which was attempted to be estab¬ 
lished in that case by proof of dedication by the owners of 
the land, and accepted by the public authorities, came to 
an end at one terminus upon the private grounds of an in¬ 
dividual, while at the other end it connected with the pub¬ 
lic street in the village of Coldspring, that it was not a 
highway ;(196) and our supreme court, in the case of The 
State vs. Frazer and another, in commenting upon the case 
of Holden vs. Trustees of Coldspring, where the question 
was raised upon the following instruction, which was asked 
by the defendant, and which was given to the jury and 
excepted by the State: “Neither the intention to dedicate 
land to the public for the purpose of street, or public road, 
nor the use thereof by the public in that manner, can 
make it a highway in that which will not answer the set¬ 
tled definition of a highway. Therefore a way which com¬ 
municates only at one end, being closed up at the other, is 
not susceptible of dedication to public use as a highway.” 
The court says upon these instructions, “ that it may be 
that the first and foregoing instruction would be bad law 
applied to some state of facts, but in the absence of the 
testimony we are bound to presume in favor of the action 
of the court below. We think that there might be a case 
where this instruction might not be erroneous without de¬ 
ciding on the rule recognized in Holden vs. Trustee of the 
village of Coldspring. * * as an abstract proposition 

of law of universal application, we think in the case under 
consideration, as the record now stands, the court com¬ 
mitted no error in giving the instruction.”(198) 


(195) 6 Wendle, p. 652. (196) 23 Barb. 103. (198) 28 Ind. 196. 



HIGHWAYS. 


171 


In the case of Bateman v. Black, the action was trespass. 
It come before the Court of Queen’s Bench in 1852. The 
defendant had entered upon the plaintiff’s land and pulled 
down a wall that the plaintiff had erected across the sup¬ 
posed highway. The defendant pleaded that the locus in 
quo was a public and common highway for all the Queen’s 
subjects to go and return, &c. The plaintiff denied this 
and thus the issues were formed. It appeared that the locus 
in quo was a passage leading from the public street up to a 
court of which the plaintiff was the owner, and which con¬ 
sisted of fourteen or fifteen houses, but there was no thor¬ 
oughfare through the court. The defendant had a house 
abutting on the street into which a doorway had been open¬ 
ed by him. The plaintiff* required the defendant to block 
up this door, which he refused to do, and consequently the 
plaintiff directed a wall to be built in the court so as to 
block up the defendant’s doorway. This wall the defend¬ 
ant knocked down while it was being erected, which was 
the trespass complained of. The passage had been paved 
and lighted by the local authorities. Lord Campbell direct¬ 
ed the jury to find a verdict for the defendant. On show¬ 
ing cause, the plaintiff’s counsel admitted that the point 
that it could not be a highway because there was no thor¬ 
oughfare had never been decided, but he referred to various 
dicta of judges on that side of the question. It was urged 
on the other side that it was a mere cul de sac , and not a 
thoroughfare, and that hence it could not be a highway. 
The opinion of Lord Campbell on this point was that “ we 
must take it that there is a good finding on this issue un¬ 
less there can not in point of law be a good highway where 
there is no thoroughfare.” No such a position can, I think, 
be supported. There may be or there may not be a high¬ 
way under such circumstances. It would be very strong 
to hold that there could be no highway even where there 
had been an expressed dedication to a public purpose be¬ 
cause the place is no thoroughfare. There may be a large 
square with only one entrance to it, and if the owner allows 
the public to use it without restriction for a great many 
years, he can not afterwards turn around and say they were 


172 


THE BOARD OF COMMISSIONERS. 


all trespassers. That would be, as said by Lord Kenyon, a 
trap to catch trespassers. 

Judge Denio, in delivering the decision of the Court of 
Appeals of the State of Hew York, in the case of The Peo¬ 
ple ex rel. Williams v. Kingman, after citing many English 
authorities, says Lord Kenyon laid it down that there might 
be a public highway where there was a cul de sac , and that 
it was a question for a jury on the evidence whether such a 
place was a highway or not. I do not find that this case 
has been expressly overruled. In other cases referred to 
the judges do not hold that such a highway does not exist, 
but only say there is no evidence of there being a highway. 
It seems to me to rest on principles of convenience, that 
there may be a highway without a thoroughfare, and it is 
not inconsistent with what is laid down by Hawkins and 
other text writers on the subject. The jury having here 
found that there was a highway, the fourth plea (which sets 
up the existence of a highway) is made out, and being un¬ 
objectionable in point of law, the defendant is entitled to a 
judgment upon it. * * * After this well considered 

case, I take it that no question can now be entertained upon 
the point at Westminster Hall. 

If we were now free to lay down a rule upon the subject, 
as perhaps we are, the modern English cases not being au¬ 
thority with us, I should say that the principle that has been 
thus established in England would be a more convenient 
and reasonable one. Highways and streets having no issue 
at one extremity are quite common, and, indeed, indispen¬ 
sable in many parts of the country. Take the case of a 
road leading into the northern wulderness of this State. 
They extend as far as the country is settled where they stop 
and remain in that condition until the progress of the set¬ 
tlement warrants their further extension. If it were held 
that they could not be laid out unless they should run 
quite across the mountain to the north slope, it would be 
impossible that it should ever be established. The same 
remark is true of roads laid out in newly settled portions 
of the State bordering upon the original forests. The roads 
are projected into the wilderness as far as it is necessary or 


HIGHWAYS. 


173 


practicable at the time to make them, and afterwards they 
are extended from time to time as circumstances may re¬ 
quire. For similar reasons in many of the cities and vil¬ 
lages there are short streets leading to ravines and to cliffs 
whence there can be no outlet and where they must neces¬ 
sarily stop, and yet the owners of dwellings situated upon 
these find them quite indispensable to the enjoyment of 
their property, and they would be greatly surprised to be 
told that they were not legal streets. The same thing is 
true of streets running to unnavigable waters, or to points 
on the sea shore where there can not be a harbor or landing 
place. 

Without spending more time upori these illustrations, I 
feel satisfied that the point insisted on, on behalf of the 
commissioners of highways, can not be maintained. If it 
was supposed to be the law in England, it was on account 
of certain peculiarities which have only a limited applica¬ 
tion here. Nearly all the highways in England are such by 
prescription, dedication or use, and where the way is used 
by only a limited number of persons the question will often 
arise whether it is a public highway or a private passage. 
This question, to be determined by a jury and the facts that 
the way is or is not a thoroughfare, has a very strong bear¬ 
ing upon the issue. It was this that caused Mr. Justice 
Crompton to make the remark that it was always a strong 
observation to the jury that the way leads nowhere.(197) 

Mr. Bishop, in his excellent work on criminal laws, in 
commenting upon the question whether a road that was 
open to the public at one end and closed at the other could 
become a highway or not, says: “There is a question 
whether a cut de sac , as it is called, or a way which termi¬ 
nates in no other way, and ends on private property, is to 
be deemed a highway in such a sense as to make the ob¬ 
struction of it indictable. Some opinions have been ex¬ 
pressed to the effect that since the public can have no occa¬ 
sion to use it, there can not be the evil resulting to the pub¬ 
lic from its obstruction which the law requires. But on 


(197) 24 New York, 559. 



174 


THE BOARD OF COMMISSIONERS. 


principles, why may not the public reserve to itself the use 
of such a way as some times it does the use of a square, so 
as to render its obstruction punishable in the same man- 
ner.(198) From all the authorities we have been able to 
collect and examine upon this question, we have arrived at 
the conclusion that a cul de sac , or a road open at one end 
and closed at the other, may become a public highway, 1st, 
by expressed grant; 2d, by dedication arising by presump¬ 
tion from a continued use for a considerable time with a 
knowledge of the owner and without objection on his part. 
3d, by order of the Board of Commissioners. And the 
mere fact that it runs no where or intersects with no other 
highway, is a circumstance that may be given to the jury 
for the purpose of dispelling the idea of the claims of the 
public to the road as a highway. 

It is provided by section 39 of the act for the establish¬ 
ment, location, vacation and change of public highways, 
that “ no county road shall be less than thirty feet wide, 
and no township road shall be less than twenty-five feet 
wide.” * * But this provision does not apply to roads 
established by express grant, nor by dedication, from the 
use of the highway. If the public use the ground of an 
individual for such a length of time as to create a presump¬ 
tion of dedication, the width of the road as traveled by the 
public will be the width of the highway.(199) The ground 
upon which the right of the public rests, to take by user 
the possession of an individual’s property and hold it as a 
public highway is on that of estoppel in pais. After an in¬ 
dividual has suffered the public to use his land as a high¬ 
way for such a length of time that public accommodation 
and private rights might be materially affected by the in¬ 
terruption of the enjoyment, would be sufficient to estop 
the owner from re-asserting his former claim. The law re¬ 
quires every man to be active in asserting his rights under 
such circumstances. And if an individual sleeps upon his 

(198) 2 Bishop’s Criminal Law, p. 1236, sec. 1236; Commonwealth vs. Tuck¬ 
er, 2 Pickering, 44. (199) Hart v. Trustees of Bloomington Township, &c., 15 

Ind. 226; Banard and others v. Haworth, 9 Ind. 193; Epler v. Nimon, 5 Ind. 
459; Debolt v. Carter and another, 31 Ind. 355. 



HIGHWAYS. 


175 


rights for years, or for such a length of time that others 
will be discommoded by his acts, he will be prohibited or 
precluded to set up a claim paramount to the one the pub¬ 
lic has acquired over his land while he was laying idly by 
and neglecting to assert his title.(200) 

Having discussed the first and second methods of estab¬ 
lishing highways at considerable length, we will now notice 
the third and last method. Our statute is as follows: 

Hoads running in but one county , and through more than one 
township. 

Sec. 15. Whenever twelve freeholders of the county, 
six of whom shall reside in the immediate neighborhood of 
the highway proposed to be located, vacated, or the change 
to be made shall petition the Board of County Commission¬ 
ers of the county in which such highway is situated, setting 
forth in such petition the beginning, course and termination 
of the highway proposed to be located or vacated, or of the 
change proposed to be made, together with the names of 
the owners, occupants or agents of the lands through which 
the same may pass, such board, if they shall be satisfied 
that such notice of such application has been given by pub¬ 
lication three weeks successively in a newspaper published 
in the county, or by posting up notice in three of the most 
public places in the neighborhood of such highway, or 
change, at least twenty days before the meeting of the board 
at which such petition is to be presented, said board shall 
appoint three persons to view such highway. 

Sec. 16. The auditor of such county shall issue a pre¬ 
cept to the sheriff thereof, commanding him to notify such 
viewers of the time, place and object of their meeting, and 
such viewers, at such time and place, after having taken an 
oath, before some officer authorized to administer oaths to 
faithfully perform their duties, shall proceed to view the 
highway, or such change; and if they shall deem the high¬ 
way to be located, or the change to be made, of public util¬ 
ity, they shall lay out and mark the same on the best ground, 


(200) Haynes and another v. Thomas, J Ind. 38. 



176 


THE BOARD OF COMMISSIONERS. 


not running through any person’s enclosure of one year’s 
standing, without the owner’s consent, unless upon exami¬ 
nation a good way can not otherwise be had: Provided , 
That where the road is laid out upon the line dividing the 
land of two individuals, each shall give half the road. 

Sec. 17. Such viewers, or a majority of them, shall make 
a report of their proceedings at the ensuing session of the 
Board of Commissioners of the county in which such loca¬ 
tion, change, or vacation may be made, giving a full descrip¬ 
tion of such location, change or vacation, by routes and 
bounds, and by its course and distance, except that in case 
of the vacation of a road, or any part thereof, such descrip¬ 
tion only as will designate it dearly, shall be required; and 
in such case, a copy of the order vacating such highway 
shall be transmitted by the proper auditor to the trustees 
of the townships in which such vacated highway is situate, 
who shall cause the supervisors thereof to be notified ac¬ 
cordingly. 

Sec. 18. If no objection be made to such proposed high¬ 
way, vacation or change, such board shall cause a record 
thereof to be made, and shall order the same to be opened 
and kept in repair, which order shall be transmitted to the 
trustees of the townships in which such location or change 
is made; and such trustees shall cause a copy of such order 
to be entered at length on their record book, and notice 
thereof to be given to the proper supervisor to work such 
location or change. 

Sec. 19. If any person through whose land such high¬ 
way or change may pass, shall feel aggrieved thereby, such 
person may at any time before final action of the board 
thereon, set forth such grievances by way of remonstrance, 
and the said board shall thereupon appoiut three disinter¬ 
ested freeholders as reviewers, and assign a day and place 
for them to meet. 

Sec. 20. Such reviewers, having five days’ notice, to be 
given by the party remonstrating, shall meet at the time 
and place designated, and take an oath faithfully to dis¬ 
charge the duties assigned them, and shall then or on any 
other day, to which a majority may adjourn, prior to the 


HIGHWAYS. 


177 


next session of such board, proceed to review the proposed 
highway and assess the damages, if any, which such objec¬ 
tor may sustain from such highway or change being opened, 
vacated or continued through his lands, and shall report the 
same to the ensuing session of such board. 

Sec. 21. If a majority of the viewers assess and report 
damages in favor of the objector, and the board shall con¬ 
sider the proposed highway, vacation or change, to be of 
sufficient importance to the public, they shall order the costs 
and damages to be paid out of the county treasury; but if 
a majority report against the claim for damages, the objec¬ 
tor shall pay the costs; and when payment of damages is 
made as herein provided, such highway shall be recorded 
and ordered to be opened and kept in repair, as hereinbe¬ 
fore provided, after notice to the proper trustees. 

Sec. 22. If it shall be made to appear to the board that 
the damages assessed are unreasonable, they may set aside 
such assessment and order another review, under the same 
regulations as provided in case of the first review. 

Sec. 23. If any one or more freeholders residing in such 
county, along such proposed highway, vacation or change, 
shall object to the same at any time before final action there¬ 
on, as not being of public utility, other viewers may be ap¬ 
pointed, who shall proceed, on a day to be by them desig¬ 
nated, after having taken an oath faithfully to discharge 
the duties assigned them, to examine the proposed highway, 
and shall make report to such board at their next session, 
whether or not, in their opinion, the said highway, vacation 
or change, will be of public utility. 

Sec. 24. If a majority of the viewers last named report 
against the public utility of such highway, the same shall 
not be established, unless they will open and maintain the 
same at their own expense; but if they report favorable 
thereto the objector shall pay the cost of the reviewers, and 
the highway shall be recorded and ordered opened and kept 
in repair. 

Sec. 25. That whenever any person shall procure the 
establishment of a highway, private or public, by change 
of one already established on or across his own land, before 


178 


THE BOAKD *DF COMMISSIONERS. 


the same shall be received by the proper supervisor as such, 
it shall be made as passable as the old highway, or as nearly 
so as the nature of the case will admit of, which fact the 
trustee of the township in which the change is made shall 
be duly satisfied before such supervisor shall be required to 
keep it in repair. 

Sec. 26. Any person aggrieved by any decision of any 
Board of Commissioners, may appeal therefrom to the cir¬ 
cuit or common pleas court of such county, upon his filing 
a bond, with surety and penalty, to be approved by the au¬ 
ditor of such county, conditioned for the due prosecution 
of such appeal, and the payment of costs, if costs be ad¬ 
judged against him; and in case proceedings shall be had 
in more than one county, the auditors of each county, on 
being notified of such appeal by the auditor of the county 
in which the appeal is taken, shall transmit to the clerk of 
the court to which the appeal is taken, all the proceedings 
in such county; and upon the determination of such appeal, 
such clerk shall notify the auditors of all the counties inter¬ 
ested thereof. 

General provisions concerning Highways . 

Sec. 39. No county road shall be less than thirty feet 
wide, and no township road shall be less than twenty-five 
feet wide; and the order for laying out of any highway 
shall specify the width thereof. 

Sec. 40. Public highways established on a county or 
township line, shall be opened and repaired by the supervi¬ 
sors of the proper road districts on each side thereof, and 
by the joint labor of the hands in each of such districts in 
each county or township. 

Sec. 41. Whenever any public highway shall have been 
laid out through any inclosed land,the supervisor shall give the 
occupant of such land, or the owner, if a resident of the road 
district, sixty days’ notice in writing, to remove his fence; 
but such owner or occupant shall not be compelled to move 
such fence between the first day of April and the first day of 
November; and if such fence is not removed pursuant to 
such notice, such supervisor shall cause the same to be done. 


HIGHWAYS. 


179 


Sec. 42. If the owner or occupant shall not have been 
allowed damages for the laying out of such highway upon 
his land, the supervisor shall give the person removing such 
fence credit on the highway tax for any amount that the 
supervisor shall deem just. 

Sec. 43. Every public highway already laid out, or which 
may hereafter be laid out, and which shall not be opened 
and used within six years from the time of its being so laid 
out, shall cease to be a highway for any purpose whatever; 
but if any distinct part thereof shall have been opened and 
used within six years, such part shall not be affected by the 
provisions of this section, nor shall this section be applied 
to streets and alleys in any town: Provided , however , That 
the trustees shall decide that public necessity does not re¬ 
quire such road kept open, which decision shall be recorded 
by the clerk, whereupon said vacated highway shall vest in 
the rightful owner who may have the title thereof accord¬ 
ing to law, of the property on each side of said highway. 

Sec. 44. In all applications for the location, change, or 
vacation of any public highway, actual settlers upon any 
public lands in any county in this State shall have and pos¬ 
sess all rights in this act granted to freeholders. 

Sec. 45. All public highways which have been or may 
hereafter be used as such for twenty years or more, shall be 
deemed public highways, and the Board of County Com¬ 
missioners shall have power to cause such of the roads used 
as highways as shall have been laid out but not sufficiently 
described, and such as have been used for twenty years but 
not recorded, to be ascertained, described, and entered of 
record. 

Sec. 46. In o person owning lands, or who is related by 
consanguinity to any person owning lands, along any pro¬ 
posed highway or change, shall be competent to act as com¬ 
missioner, viewer, or reviewer thereof. 

Sec. 47. Viewers and reviewers appointed under this 
act shall receive one dollar for every day they shall be nec¬ 
essarily employed as such. 

Sec. 48. The township board of any township, on peti¬ 
tion of an individual desiring to plant a hedge on his land 
13 


180 


THE BOARD OF COMMISSIONERS. 


adjoining a public highway, may grant such individual the 
privilege of placing his fence seven feet on such highway: 
Provided , Said fence will not be an obstruction to the high¬ 
way. 

Sec. 49. Any person may have a private road laid out, 
changed, or vacated, upon presenting a petition to the trus¬ 
tees of the township in which such petitioner may reside, 
under regulations hereinbefore provided for roads running 
through one township only. If such private road shall ex¬ 
tend into more than one township, such petition shall be 
presented to the county board, under the same regulations, 
as is provided in case of highways running into more than 
one township: Provided , That such board, or trustees, may 
order such private road to be laid out, changed, or vacated, 
without any view, if there be no remonstrance against such 
petition; shall open and keep in repair such road at his own 
expense: And provided further, That such road may be 
either dirt, plank, Macadamized, gravel or railroad. 

To establish a road or public highway under the above 
provisions, the first step to be taken is to get up your pe¬ 
tition, and as this is the starting point and basis for the 
entire action, great care should be used by the draftsman 
to get the petition drawn up in accordance with the law. 

Practice in Highway cases under the Statute. 

It will be seen by the reading of these sections, that 
there is no statute of our State so ambiguous and hard to 
understand as that relating to highways. And the attor¬ 
ney who attempts to practice before the board of commis¬ 
sioners under this statute, will be compelled to grope his 
way through darkness, without a precedent or example to 
guide him. Our supreme court has attempted in its wis¬ 
dom to throw some rays of light upon the highway act, 
and to mark out a course which would, as they supposed, 
ultimately lead into a settled practice in such cases. But 
so far they have only succeeded in adding to its complica¬ 
tions. It is provided by the ninth section of the act cre¬ 
ating the board of commissioners, “ that such commission¬ 
ers shall adopt regulations for the transaction of business, 


HIGHWAYS. 


181 


and in the trial of causes they shall comply, so far as prac¬ 
ticable, with the rules of conducting business in the cir¬ 
cuit court. And in the case of Little vs. Thompson and 
others, our supreme court held that section fifty-four of 
the practice act, which reads as follows: “ That if no such 
objection be taken, either by demurrer or answer, the de¬ 
fendant shall be deemed to have waived the same, except 
only the objection to the jurisdiction of the court over the 
subject of the action, and except the objection that the com¬ 
plaint does not state facts sufficient to constitute a cause of 
action, 1 ”(a) was applicable to the practice before the board. 
(d) As this section clearly authorizes the filing of a de¬ 
murrer for defects of parties, one would readily have con¬ 
cluded that as section nine of the commissioners , act pro¬ 
vides that in trials before the commissioners they must be 
governed by the practice in the circuit court, that the only 
way that an objection could be waived to pleading before 
the commissioners, would be by demurrer. But in the 
case of Logan vs. Kiser and others, the same court held 
that no such pleading as a demurrer or answer is allowable 
in such cases. (b) And in the case of Hays and others vs. 
Campbell and others, the same court held that unless the 
petition set out the names of the land owners over which 
the road would pass, that the commissioners had no au¬ 
thority to act, and had no jurisdiction, and that a motion 
to dismiss the proceeding for this reason could be made 
and entertained at any stage of the proceeding.(d) But in 
the case of Crossley and others vs. O’Biney and others, the 
same court held that a motion to dismiss the proceeding 
because the petition failed to set out the names of all the 
land owners over which the highway would pass, could 
not be made after the appointment of viewers. (e) But in 
the case of Hughs vs. Sellers and others, the same court 
reaffirmed the decision in the case of Hays and others 
vs. Campbell and others, and held that a motion to dis¬ 
miss should be entertained by the court at any time before 
final action, if the petition failed to set out the names of 

(a) 2 G. & H. p. 8i,s. 54. id ) 24 Ind. 146.; 1 G. & H. p. 249. lb ) 25 
Ind. 393. id ) 17 Ind. 430. (*) 24 Ind. 325. 



182 


THE BOARD OF COMMISSIONERS. 


the land owners over whose land the highway passed .(f ) 
From these decisions we arrive at the following conclusion: 
That if there is any defect not apparent on the face of 
papers or petition, it must be taken advantage of at the 
time of the presentation of the petition, or before the 
viewers are appointed, or else they are waived. Any de¬ 
fects in the notice or time of publication, or that the peti¬ 
tion was not signed by a sufficient number of freeholders 
residents of the county and in the neighborhood of the 
highway, or that petitioners were not adults, or compos 
mentis , must all be raised before the appointment of 
reviewers, (y) But if there is a defect apparent on the face 
of the petition, that can be objected to at any stage of the 
proceedings.(A) These decisions are evidently based upon 
section 54 of the practice act supra. If you desire then to 
take advantage of any defects that are not apparent on 
the face of the papers, you must appear before the board 
at the time of the presentation of the petition to the board 
and make your objection, otherwise you will be barred. 
And the exact mode of raising objections not apparent on 
the face of the petition, is not well settled. Our supreme 
court, in the case,of Little vs. Thompson and others, speak¬ 
ing in regard to a motion made by the defendant to dis¬ 
miss the petition because there were not twelve freeholders 
on the petition, say, “We do not think the court erred in 
overuling the motion. The objection goes to the capacity 
of one of the petitioners to join in the petition, and as the 
objection did not appear on the petition, if it could have 
been presented at any time after the appointment of view¬ 
ers, it should have been raised by plea in abatement, and 
not by motion.” (y) Objections that go to the capacity of 
the petitioner must be raised by plea in abatement. And 
an objection that goes to the defect of notice must be 
raised by motion to dismiss the proceeding, or motion to 
set the service or notice, aside. If the defect that you 
wish to object to relates to the qualification of the petition- 


(/) 54 Ind. 337. ( g ) 24 Ind. 146; id . 325; 29 Ind. 354. ( h ) 34 Ind. 337. 
U ) 25 Ind. 393. 



HIGHWAYS. 


183 


ors, or any one of them, you must appear before the board 
and file your plea in abatement. 

Form for plea in abatement: 

John Smith 1 

vs. \ Petition for Highway. 

Hugh Cook and others, j 

The defendant John Smith pleads in abatement to the 
petition herein, that William Hunt, one of the petitioners 
to said petition, was not at the time he signed said petition, 
nor is not at this time, a resident freeholder of Vermillion 
county, Indiana; wherefore the defendant prays that be¬ 
cause the said William Hunt was not at the time of the 
signing of said petition, nor is not at this time a resident 
freeholder of the aforesaid county, that said petition may 
abate. (A) 

JOHN SMITH. 

Subscribed and sworn to before me, this — day of--, 

187—. John Short, Auditor. 

All defects apparent on the face of the petition can be 
taken advantage of by oral motion, or you can reduce your 
motion to writing. If your plea in abatement is sustained, 
or if your motion to dismiss the proceeding is decided in 
your favor, this will put an end to the proceedings at once. 
Hut the petitioners may at any time recommence their pro¬ 
ceeding again. But if your plea and motions be overruled, 
you can then remonstrate.(A) 

The first thing to be done by an individual who wishes 
to establish, locate or change a public highway, is to get up 
his petition and ascertain whether the public or the citi¬ 
zens living in the neighborhood of the proposed highway 
desire to join with him in his public enterprise. And as the 
petition, In the getting up and locating of a public highway, 
is the basis upon which the whole proceeding must ulti¬ 
mately stand or fail, great care should be taken in getting 
it correct and accurate. The requirement of the law must 

(/i) All pleas in abatement must be verified by affidavit. 2.8 Ind., 521; 25 
Ind., 112; 20 Ind., 528. 



184 THE BOARD OP COMMISSIONERS. 

be substantially complied with. No petition will be suffi¬ 
cient which does not set out the beginning, course and 
termination of the highway proposed to be located or 
changed, and the names of the owners, occupants or agents 
of the land through which the highway passes. Under the 
act of 1867 the evident intention of the Legislature was to 
require the names of the land owners to be set out, and 
provided the name of the owner was unknown, then the 
name of the person occupying the same should be given. 
If the name of the owner can not be ascertained, and no> 
person occupies the premises, if there is a person living in 
this State, or even if he lives out of the State, who has con¬ 
trol and management of the farm, he should be named in 
the petition as the agent having control and management of 
the premises, (the name of the owner being unknown.) If 
the names of the owners of the land are set out in the peti¬ 
tion, this will be sufficient, as the law presumes every man 
occupies and superintends his own premises, (d) There 
must be a prayer in the petition; it must pray for some¬ 
thing, or ask that something be done. If yon want to 
locate, say locate and establish a public highway. If you 
want to relocate, let the prayer of your petition be to relo¬ 
cate the following public highway. If you want to change, 
let the prayer of your petition be for a change or relocation 
and location. Your petition must show that the road runs 
in the county in which you make your application. It is 
not necessary for you to allege that the subscribers are all 
freeholders; this will be a question of proof on the presenta¬ 
tion of your petition. You need not allege in your petition 
that six of the petitioners reside in the immediate neighbor¬ 
hood of the highway proposed to be located, relocated or 
changed.(12) The law is silent as to what other qualifica¬ 
tion the petitioner shall have, except that he must be the 
owner of real estate. But we are inclined to the opinion 
that the law contemplates more than this. The word peti¬ 
tion in the highway act means an exercise of an intelligent 
power, an act of thought; and a petitioner should have a 


{d) Mulhollen v. Thomas, 7 lad, 165. (112) Bowen v. McCord, 20 Ind., 27a 



HIGHWAYS. 


185 


clear comprehension of the evil that is intended to be rem¬ 
edied, and the want of the community in which he lives, or 
through which the road or highway is to pass. We think 
that the law, when it says a u petition signed by twelve free¬ 
holders, six of whom shall reside in the immediate neigh¬ 
borhood,means twelve adult persons who are capable of 
knowing and understanding what they are about. The law 
makers never intended that roads that take men’s property 
from them and appropriate it to the community, should be 
established on a petition presented to the commissioners by 
children or non compos mentis , distracted or idiotic persons, 
yet they all can be freeholders under our law. The right of 
eminent domain, or the paramount right that the public 
have to take one’s property from him for the use of the pub¬ 
lic should only be exercised in clear cases where the wants 
of the community are imminent. And as the board of com¬ 
missioners must act solely upon the evidence and represent¬ 
ations of others, they should inquire into the capacity and 
means that their petitioners have of informing themselves as 
to the wants of the community; and if, on inquiry, they find 
that the petitioners are all adult persons, and compos mentis , 
the inquiry should there stop. And perhaps as the law 
presumes every man sane until the contrary is established, 
the board need not make any inquiry into the mental condi¬ 
tion of the signers, but this can be established on the 
defense. We have therefore come to the conclusion that no 
highway can be established in this State on the petition of in¬ 
fants, persons of unsound mind, or of feme coverts. But per¬ 
haps in cases of a feme covert or married woman, she might 
be a valid petitioner by the consent of her husband, and this 
consent may be in writing or given orally. But if the 
fact that one of the petitioners, whose name is appended to 
the petition, is established that she is a feme covert , unless 
there are twelve other persons freeholders, on the petition, 
the board would have no jurisdiction of the cases, unless 
the fact was established that her husband had consented to 


(12) Bowen v. McCord, .2a;Ind., 270. 



186 


THE BOARD OF COMMISSIONERS. 


the same. If her husband joins with her in the petition, 
we think that this would he sufficient. 

The petition may be in the following form: 

To the Honorable Board of Commissioners of Vermillion Co.: 

The undersigned, freeholders and residents of said county, 
would pray your honors to locate and establish a public 
highway in Vermillion county, Indiana, on the following 
route: Commencing at northeast corner of section 18, town¬ 
ship 17 north, range 9 west, running thence due east one 
mile to the northeast corner of section 17, township and 
range as aforesaid, thence due north one mile to the north¬ 
east corner of section 8, township and range aforesaid; 
then to intersect the Wabash and Grand Prairie road. 
The proposed highway passes over the land of John Smith, 
Thomas Hays, Jesse. Mendenhall and Thos. Swim. We 
would recommend that said road be sixty feet wide, as it 
will probably be extensively traveled. And we will ever 


pray. 


Hugh Cook, 
Joseph Clark, 
James Sikes, 
Phil. Harrier, 
Henry Axton, 
Robert Turner, 


William Hunt, 
John JDoe, 


Henry Bundly, 
John Cross, 


Hugh Johnson, 
George W. Miller. 


The above form can be varied to suit any route. 

As it would be an act of injustice to take a man’s prop¬ 
erty from him for the use of the public without giving him 
a chance to come in and object and show his damages, the 
law, therefore, provides that the petitioners must, before 
they can get their road located, give notice, either by three 
weeks’ publication successively in some newspaper pub¬ 
lished in the county where the road is to be established, or 
by posting up three written notices in three of the most 
public places in the neighborhood of the road proposed to 
be located, vacated or changed, to be made of the time 
the petition will be presented.(8) The law does not specify 
what the notice shall contain, but we think it ought to be 
sufficiently specific to notify the public that there will be a 
petition presented to the board of commissioners at a cer- 


HIGHWAYS. 


187 


tain time to be named, praying for the location, &c., of a 
highway on a certain route, and that it will pass over the 
lands of certain persons, the names of which should be set 
out. The notices need not be signed by any one.(a) The 
fact of publication and of the posting up of the notices can 
be established by affidavit. 

Form of notice: 


NOTICE. 

Notice is hereby given that there will be a petition pre¬ 
sented to the Board of Commissioners of Vermillion county, 
Indiana, at their December session, A. D., 1872, praying for 
the location and establishment of a public highway on the 
following route in said county: Commencing at the north¬ 
east corner of section 18, township 17 north, range 9 west, 
running thence due east one mile to the north-east corner 
of section 17, township and range aforesaid, thence due 
north one mile to the north-east corner of section 8, town¬ 
ship and range aforesaid, then to intersect the Wabash and 
Grand Prairie Road. Said proposed highway will pass over 
the lands of John Smith, Thomas Hays, Jesse Mendenhall 
and Thomas Swim. William Hunt. 

The above form may also be used in case of publication 
in a paper. 

At the time you present your petition to the board you 
must make proof of publication either by posting up no¬ 
tice or insertion in a paper; and in case you have given no¬ 
tice by posting up notice, you can make proof of this either 
by oral evidence or by affidavit. If you make proof of the 
fact by a witness you must have him before the commis¬ 
sioners at the time and place you present your petition, have 
the auditor to swear him to well and truly answer such in¬ 
terrogatories as may be propounded to him, then have him 
to state the fact as to the time and places he put up the no¬ 
tices. 

If you wish to make proof by affidavit, the following 
form may be used: 


(3) 1 Res. by G. & H., p. 362. ( a ) Wright v. Wells and others, 29 Ind., 364. 



188 


THE BOARD OF COMMISSIONERS. 


STATE OF INDIANA, 1 . 

Vermillion County. / 

Thomas Smith, being duly sworn, upon his oath says that 
he stuck up on the 1st day of December, 1872, three notices 
in Vermillion county, Indiana, of which the above and fore¬ 
going is a true copy; that said notices were stuck up one 
in the town of Eugene, one at White’s Mill, and one at the 
town of Newport; that these three places are the most pub¬ 
lic places in the neighborhood of the proposed highway 
mentioned in said notices. 

THOMAS SMITH. 

Subscribed and sworn to before me this December 21st, 
1872. JOHN SHORT, Auditor. 

If you give notice by publication in a paper you must 
get the affidavit of the printer. The following form may 
be used: 

STATE OF INDIANA,! 

Vermillion County. J 

Personally appeared before the undersigned, Samuel B. 
Davis, publisher of Hoosier State, a newspaper of general 
circulation printed and published in Vermillion county, In¬ 
diana, who, being duly sworn upon his oath, saith that the 
notice, of which the attached is a true copy, was duly pub¬ 
lished in said paper for three weeks successively, the first 
of which publications was on the 10th day of November, 
1872, and the last on the 1st day of December, 1872. 

S. B. D. 

Subscribed and sworn to before me this 10th day of De¬ 
cember, 1872. JOHN SHORT, Auditor 

Most all the forms that I have given in this work have 
had the name of the county inserted, but the reader will 
see at once that this can be changed to suit the circum¬ 
stances. 

At the time you present your petition to the board, after 
making proof of publication or notice, you must then estab- 


HIGHWAYS. 


189 


lisli the following facts by the testimony of some competent 
witness: 

1. That the petition is signed by twelve freeholders of 
the county. 2. That six of the petitioners now live in the 
immediate neighborhood of the proposed highway. 

For if you fail to do this the board will have no jurisdic¬ 
tion of the cause, and if they act in the premises their acts 
will be void.(10) 

After these facts have been established the board must, 
if there is no remonstrance filed, appoint “ three persons to 
view such highway.” The statute provides that no person 
owning land, or who is related by consanguinity to any per¬ 
son owning land along any proposed highway or change, 
shall be competent to act as commissioner, viewer, or re¬ 
viewer thereof. (11) 

The word consanguinity means relation by blood; hence 
no person who owns land along any proposed highway, or 
any person who is related to any one in the degree of sec¬ 
ond cousins, is competent(12) to act as viewer. 

As litigation means a dispute between different parties in 
a court of justice for the purpose of enforcing the right, 
and as each party is always presumed to present his claim 
in the honest belief that it is meritorious and just, the court 
should give each litigant a fair, impartial hearing. It is 
always presumed that a tribunal that sits as a dispenser of 
justice between man and man is unbiased and without 
prejudice. One of the greatest reasons of men’s inability 
to agree upon financial matters and matters in reference to 
property, is selfishness and prejudice. The board should, 
therefore, in selecting men for viewers, be careful to get 
impartial and disinterested persons. The board should 
make a record of all its proceedings in the premises. 

Form for Record: 

Comes now William Hunt and presents a petition signed 
by twelve freeholders of Vermillion county, Indiana, pray¬ 
ing for the location of a public highway in the aforesaid 

(io) Little vs. Thompson and others, 24 Ind. 146; Hays et al. vs. Campbell 
et. al., 17 Ind. 430. (11) 1 Res. by G. & H., p. 366, sec. 46. (12) Brady vs. 

Richardson, 18 Ind.; 12 Ind. 303. 



190 


THE BOARD OF COMMISSIONERS. 


county on the following route: Commencing at the north¬ 
east corner of section 18, township 17 north, range 9 west, 
running thence due east one mile to the north-east corner 
of section 17, township and range as aforesaid; thence north 
one mile to the north-east corner of section 8, township and 
range above mentioned. 

And it appearing to the satisfaction of the board that 
notices of the time of the presentation of this petition has 
been given by posting up notices in three of the most pub¬ 
lic places in the neighborhood of the road; and it further 
appearing to the board, from the evidence adduced, that 
all the signers are freeholders of said county of Vermillion, 
and that six of them reside in the immediate neighborhood 
of the aforesaid road, it is therefore ordered by the board 
that Henry Tate, Clark Smith and Richard Roe be, and 
they are hereby, appointed viewers to view the proposed 
highway aforesaid, and to report as to whether the same is 
of public utility at the next term of this court, and this 
cause is continued. And that they meet for to view said 
road on the 31st day of January next at the south-east cor¬ 
ner of section 18, set out above. 



After the board has appointed viewers it is the duty of 
the auditor of such county to issue his precept to the sher¬ 
iff thereof commanding him to notify such viewers of the 
time, place and object of their meeting. The law fixes no 
particular time when this shall be done, but it should be 
done in a reasonable time; the viewers should have ample 
time to meet and take the necessary oath and view the route 
and travel to the county seat and make their report. The 
precept of the auditor may be in the following form: 

STATE OF INDIANA, \ 

Vermillion County, j ss * 

To the Sheriff of Vermillion County: 

You are commanded to notify Henry Tate, Clark Smith 
and Richard Roe that they were appointed viewers to view 


HIGHWAYS. 


191 


and report whether a highway located in Wermillion coun¬ 
ty, Indiana, on the following route would be of public util¬ 
ity : Commencing at the north-east corner of section 18, 
township 17, range 9 west, running thence east one mile to 
the north-east corner of section 17, township and range 
aforesaid; thence due north one mile to the north-east cor¬ 
ner of section 8, township and range aforesaid. That they 
will first take an oath as required by law, and then meet at 
the north-east corner of the aforesaid section 18 on the 81st 
day of January next; that you then and there view said 
route, and if you are of the opinion that a public highway 
located on said route would be of public utility, you will 
lay out and make the same on the best ground not running 
through any person’s inclosure of one year’s standing with¬ 
out the owner’s consent, unless upon examination a good 
way can not otherwise be had, and make report of your 
proceedings in the premises at the next term of the board. 
In witness whereof I have hereunto set my hand and offi¬ 
cial seal this December 29th, 1872. 

[seal.] JOHN SHORT, Auditor. 

The sheriff, on receipt of the precept, must proceed at 
once to serve the same on the parties; this he can do either 
by reading or leaving a copy at their last place of residence. 
We think the better w T ay would be to leave a certified copy, 
as this would be a guide for the viewers to follow. But the 
viewers should in no case attempt to view and locate a road 
without a description of the route which they are to view. 
After they have been notified the viewers must meet, at the 
time and place designated in the notice, and must then and 
there take an oath faithfully to discharge the duties assign¬ 
ed them; this they can do before the clerk of the court, 
auditor of the county, a justice of the peace, or notary pub¬ 
lic residing in their county. 

The oath may be in the following form. 

We do solemnly swear that we will faithfully discharge 
our duties assigned us as viewers of the following proposed 
public highway, commencing at the north-east corner of 


192 


THE BOARD OP COMMISSIONERS. 


• 

section 18, township 17 north, range 9 west, running 
thence east one mile to the north-east corner of section 17, 
township and range aforesaid; thence due north one mile 
to the north-east corner of section 8, township and range 
aforesaid. So help us God. . 

HENRY TATE. 
CLARK SMITH. 
RICHARD ROE. 

Subscribed and sworn to before me, this 31st day of 
January, 1873. 

JOHN SHORT, 

Auditor Vermillion Co. 

After the viewers have once met and taken the neces¬ 
sary oath, they can adjourn to a day in the future, to be by 
them designated. And no doubt but on meeting the 
second time they might for good reason adjourn again, to 
meet at some time in the future. But they must, prior to 
the next meeting of their county board, meet and view 
the proposed highway, and if they deem it of public 
utility, they mustrjUy cut and mark the same on the best 
ground, not running through any person’s enclosure of one 
year’s standing, without the owner’s consent, unless, upon 
examination, a good way cannot otherwise be had. In 
arriving at the question of utility, the viewers should take 
into consideration the question of cost: Will it cost the 
public more than it will be worth ? Will the expense ex¬ 
ceed the profits ? If after a careful examination, the view¬ 
ers are of the opinion that the expense will be more of a 
burthen to the community than the road will be of advan¬ 
tage, they should report against the utility of the high¬ 
way. (13) In coming to a conclusion as to the utility of 
the road, the viewers should not be confined entirely to the 
wants of any particular community, but should take a 
more extended \iew, and grasp in the wants of the whole 
community in general. 

In laying out said highway, the viewers cannot deviate 
any considerable distance from the path marked out by the 


(13) Crossley and others vs. O’Brien and others, 24 Ind. 325. 



HIGHWAYS. 


193 


petition. That statute that requires them to locate it on 
the best ground, ought not to be considered as authorizing 
them essentially to depart from the definite route peti¬ 
tioned for. (14) At the next term of the court they must 
make their report in writing to the board of commissioners, 
and in that report, they must either report in favor of, or 
against the utility of the highway, and their report must 
not depend on a contingency but must be absolute, either 
in favor or against the road. The report of the majority 
will be sufficient. 

The following form may be used: 

To the Honorable Board of Commissioners of Vermillion County: 

We, the undersigned viewers appointed by your honor¬ 
able body, at your December session, 1872, to view the fol¬ 
lowing proposed highway, situated in Vermillion county, 
Indiana, commencing at the north-east corner of section 18, 
township 17, range 9 west, running thence due east one 
mile, to the north-east corner of section r), township and 
range aforesaid, thence north one mile to the north-east 
corner of section 8, township and range before given, 
would report to your honorable body that, pursuant to pre¬ 
vious notice, w r e met at the north-east corner of section 18, 
mentioned above, and after taking the oath before Smith 
Jones, a Justice of the Peace of said county, we proceeded 
to view said highway, and to ascertain whether a highway 
located upon the aforesaid route would be of public utility 
or not; and after a careful consideration of the wants of 
the community, and a thorough examination of the pro¬ 
posed route, we came to the conclusion that said proposed 
highway will be of public utility; we therefore proceeded 
to lay out and mark the same, which we did in the fol¬ 
lowing manner: The said road was laid out thirty feet 
wide—fifteen feet on each side of said line—and we drove 
stakes in the ground at both sides of the same. 


(14) Crossley and others vs. O’Brien and others, 24 Ind. 325. 



194 


THE BOARD OF COMMISSIONERS. 


Having discharged our duty, we now ask to be dis¬ 
charged from our trust. May 1,1873. 

HENRY TATE, ) 

CLARK SMITH, V Viewers. 
RICHARD ROE, j 

At the time the viewers file their report, if there is no 
remonstrance filed by any one, the report of the viewers 
should be acted upon at once. The commissioners should 
confirm the report, and order the road opened. Their pro¬ 
ceeding should be entered of record. 

The following form may be used: 

Comes now Henry Tate, Clark Smith and Richard Roe, 
viewers appointed at last term of this court to view the 
following proposed highway, situated in Vermillion county, 
Indiana, commencing at the north-east corner of section 
18, running thence due east one mile to the north-east cor¬ 
ner of section 17, same township and range, thence north 
one mile to the north-east corner of section 8, township 
and range aforesaid, and file their report in favor of the 
location and establishment of the proposed highway, which 
report is received and confirmed, and it appearing to the 
board that said viewers have in all things discharged their 
duties well, it is therefore ordered that they be discharged 
from their said trust. And it is further ordered by the 
board that said highway be, and is hereby located and es¬ 
tablished on said route, and that it be thirty feet in width; 
and that said road shall be opened accordingly and kept in 
repair; and that the trustees of Eugene township be notified 
of this fact. 

It is provided in section 23 supra, That any one or more 
freeholders who reside in the county, and along any pro¬ 
posed highway, may at any time before final action by the 
board, object to the location and establishment of the same, 
as not being of public utility, other men may be appointed 
by the board, who shall proceed on a day to be designated 
by the board, to view said proposed highway, and to ascer- 


(s) Hughes vs. Sellers et at,, 34 Ind. 337. 



HIGHWAYS. 


195 


tain whether the same will be of public utility. They 
must qualify as other viewers. They must meet at the 
time and place appointed by the board, and proceed to 
view said highway, and to ascertain whether the same, if 
opened, will be of public utility. They must make their 
report to the board at the next regular meeting. If a ma¬ 
jority of these viewers report against the public utility of 
the highway the board of commissioners cannot establish 
the same, unless the original petitioners will open and 
maintain the same at their own expense. The record of 
the board upon such circumstances should show upon what 
condition the road is ordered to be opened and kept in re¬ 
pair. If, however, the viewers should report in favor of 
the utility, they must order the road opened and kept in 
repair 

F.ORM OF OBJECTION. 

To the Honorable Board of Commis’ners of Vermillion County: 

AVe, the undersigned, resident freeholders of the county 
aforesaid, would represent to your honorable body that we 
reside along the following proposed public highway in Ver¬ 
million county, Indiana: Commencing at the north-east 
corner of section 18, township 17 north, range 9 west, run¬ 
ning thence east one mile to the north-east corner of sec¬ 
tion 17, township and range aforesaid, thence north one 
mile to the north-east corner of section 8, township and 
range aforesaid; being fully satisfied that a highway estab¬ 
lished upon the aforesaid route will not be of public utility, 
we remonstrate and object to the establishment of a high¬ 
way upon the aforesaid route, for the reason that it will not 
be of public utility. 

M. D. 

File this petition with the auditor, and then prove that 
you are freeholders residing along the proposed highway. 
On making this proof it will be the duty of the board to 
appoint other viewers. 

14 


196 


THE BOARD OF COMMISSIONERS. 


It is provided by section 39 supra, that no county road 
shall be less than thirty feet wide. The board of county 
commissioners have no authority to establish a public high¬ 
way less than thirty feet in width, and this must appear in 
their order, or their proceeding in the premises will be 
void. 

It is provided by section 19 supra, that if any person 
through whose land any highway vacation or change may 
pass shall feel agrieved, such person may, at any time be¬ 
fore final action of the board thereon, set forth such griev¬ 
ances by way of remonstrance. Such board must appoint 
three disinterested freeholders as viewers, and assign a day 
and place for them to meet. 

The following form may be used: 

To the Honorable Board of Commis’ners of Vermillion County: 

The undersigned, your petitioner, would represent to 
your honorable body that he is the owner of the following 
described tract of land, situated in said county: The 
north-east quarter of section 17, township 17 north, range 
9 west; and that a certain proposed highway petitioned for 
by Hugh Cooke and others, which is located on the follow¬ 
ing route through said county, commencing at the north¬ 
east corner of section 18, township and range aforesaid, 
running thence due east one mile to the north-east corner 
of section 17, township and range as above, thence north 
to the north-east corner of section 8, township and range 
aforesaid, passes over and through the above described 
premises, belonging to your petitioner; that by reason of 
the location of said highway through my land aforesaid, I 
will be damaged in the sum of one thousand dollars in this: 
that I will be compelled to build a fence for at least one- 
quarter mile; that by reason of the location of said road 
my farm will become destitute of stock-water, and by this 
means damage me in my business. I therefore pray your 
honorable body to appoint viewers to assess my damages 
in accordance with law, and I will ever pray. 

JOHJST SMITH. 


HIGHWAYS, 


19T 


In order for the board to act on this, you must show by 
some kind of evidence that you own the land mentioned in 
your petition. The board will then appoint three disinter¬ 
ested freeholders of the county as viewers, and must assign 
a day and place for them to meet. The board must make 
a record of this as well as of all their other proceedings. 

The following form may be used: 

Comes, now, John Smith, and presents his remonstrance, 
and says that he is aggrieved by reason of the location of 
a certain highway running through his land. Said high¬ 
way is known as the Hugh Cook Road, and runs from the 
northeast corner of section 18, township IT north, range 9 
west, east one mile to the northeast corner of section 17, 
township and range aforesaid, thence north one mile to the 
northeast corner of section 8, township and range as given 
above. It is therefore ordered by the board that Alva Ar- 
rowsmith, William White and John Thomas be and they 
are appointed viewers, to view and assess the damage, if 
any the said John Smith may sustain by reason of the loca¬ 
tion of said highway over his land; that said viewers meet 
at the northeast corner of section 18, township and range 
aforesaid, on the 15th day of April, 1873, and that they 
report their doings in the premises at the next meeting of 
this board. 



The viewers must be notified of their appointment by 
the remonstrator, and this must be done five days before 
the time fixed by the board for the viewers to meet. 

To Alva Arrowsmith , William White and John Thomas: 

Gentlemen —You will take notice that the bojird of com¬ 
missioners of Vermillion county, at their March session, 
1873, on petition by myself, claiming damages by reason 
of the location of what is known as the Hugh Cook Road 
across my land. Said road commences at the northeast 
corner of section 18, township 17 north range 9 west, and 





198 


THE BOARD OF COMMISSIONERS. 


runs thence east one mile to the northeast corner of section 
17, township and range as above, thence north one mile to 
the northeast corner of section 8, township and range as 
aforesaid, appointed you viewers to view and assess the 
damages that I may sustain by reason of the location of 
said road over my land ; and the board request me to say 
that you will meet at the northeast corner of section 18, 
heretofore mentioned, on the 15th day of April next, at 
10 o’clock a. M. JOHN SMITH. 

April 1,1873. 

At the time and place appointed for them to meet, the 
viewers must meet, and after taking an oath to faithfully 
discharge their duties according to law they can proceed 
at once to view said road, and assess the damages of the 
remonstrator, or they may adjourn to meet at some fixed 
time in the future. In assessing the damage of the remon¬ 
strator, the statute fixes no rule for the government of the 
viewers, but leaves them free to adopt their own course and 
method of assessing the damages. 

Section 21, Article I, of our State Constitution provides 
that “No man’s property shall be taken by law without just 
compensation; nor, in case of the State, without such com¬ 
pensation first being assessed and tendered.”(a) The taking 
of private property for public use is a taking by the State; 
hence, under this section, the public may take the property 
of an individual without first tendering the damages. But 
section 25, supra, provides that no highway shall be opened, 
worked or used until the damages assessed thereof shall be 
paid or deposited in the county treasury for the use of the 
claimant, unless the claimant shall consent in writing that 
the road may be opened.(y) But the question as to what 
the viewers should take into consideration in assessing the 
damage of an individual over whose land a public highway 
is located, is a question not free from difficulty. The view¬ 
ers should take into consideration both the value of the 
land to be appropriated and the consequential damages, or 
what might be more properly called the direct and remote 

(a) i G. & H., p. 31. (£•) Dronberger and others v, Reed, 11 Ind., 420; 1 
G. & H., 364. 



HIGHWAYS. 


199 


damages. They should first assess tne value of the land, 
then the necessary expense in removing fences, the number 
of new rails that will be required, and their value. If the 
road will divide up the farm into small pieces, or cut off a 
water-privilege, or is a source of inconvenience to the land 
owner in any way, these should all be taken into account. 
They should deduct from the sum total of these damages 
the amount of benefit the highway will be to the piece of 
land which it is claimed will be injured. It is thought by 
some that the benefit arising to the land from the location 
of the highway, can only be set off* against consequential 
or remote damages. But after a thorough examination of 
the cases of Mclntire v. The State, and the case of the 
Indiana Central Railroad Company v. Hunter, we are fully 
satisfied that the benefit may and should be considered in 
estimating the amount of either direct or consequential 
damages. But in considering the benefit, the viewers will 
be confined to the piece of land which is claimed to be 
injured, and can not estimate the benefit to other lands 
belonging to the claimant. The true rule upon this ques¬ 
tion is the one laid down by our Supreme Court in the case 
of Swidener v. Essex et al., in which they say that the 
measure of damages in such a case is the difference in the 
value of the farm with the road and its value without the 
road.(A) After the viewers have assessed the damages, or 
come to a conclusion upon the case, they must at the next 
session of the board of commissioners report their verdict 
or finding to the board in writing. 

FORM OF THE REPORT. 

To the Board of Commissioners of Vermillion County: 

We, the undersigned, appointed by your honorable body 
at your December session, 1872, to view and assess the dam¬ 
ages that John Smith wmuld sustain by the location of the 
following public highway : Commencing at the northwest 
corner of section 18, township 17 north, range 9 west, run¬ 
ning thence east one mile to the northeast corner of section 

(/*( See, upon this point, 22 Ind., 201; 8 Ind., 74; ri Ind., 420; 5 Black., 
384; 5 Black., 543. 


200 


THE BOARD OF COMMISSIONERS. 


17, township and range aforesaid, thence north one mile to 
the northeast corner of section 8, township and range afore¬ 
said, through his farm, beg leave to report our proceedings 
and finding in the premises. After taking the oath required 
by law, we proceeded to examine the premises, and we 
found that the aforesaid highway passed over a portion of 
his land; and, after a thorough examination of all the facts 
connected with the case, we are of the opinion that John 
Smith is damaged by reason of the location of said high¬ 
way over his premises in the sum of fifty dollars. We, 
therefore, assessed his damages at that amount. 


A. A., 
W. W.. 
J. T., 



If the receivers, appointed by the board to assess dam¬ 
ages, report in favor of the claimant, it is provided by Sec. 
22 supra , that if it shall be made to appear to the board 
that the damages assessed are unreasonable, the board may 
set aside such assessment and appoint reviewers under the 
same regulation as provide in case of the first reviewers. 
The word unreasonable, as used in this section, means more 
than the words too high; it means excessive beyond reason. 
The word may , means shall. Therefore if the board is sat¬ 
isfied that the damages are unreasonable, their duty is im¬ 
perative, they must set the view aside. But the only way 
that this question can be raised before the board, is to move 
to set the report of the viewers aside; this will necessarily 
raise an issue of facts which the board will have to deter¬ 
mine by the weight of preponderance of evidence. Each 
party in such cases will be allowed to produce and examine 
witnesses in reference to the point at issue. Under such 
circumstances, the board should exercise a great deal of 
caution, and if they believe, after hearing the evidence, that 
the damages are a little unreasonable, but if the expenses 
will overrun the profits, they should refuse to set the report 
aside. 

The statute is silent as to the number of times a report 
of viewers appointed under See. 22 may be set aside, but 
we are inclined to the opinion, from the peculiar wording 


HIGHWAYS. 201 

of this section, that the board would have no authority to 
set a second report aside. 

If, however, there is no motion to set the report of the 
viewers aside, or if the viewers report adversely to the 
claimant, the board should confirm the report and order the 
highway opened. But it is provided by Sec. 21, supra , that 
in case the viewers assess the remonstrators , damages, it 
then becomes a question for the board to decide whether 
the damages shall be paid out of the county treasury, and 
if the board, after due consideration of all the circumstan¬ 
ces, shall be of opinion that the highway will be of sufficient 
importance to the public, they must order the costs and 
damages to be paid out of the county treasury, and cause 
the highway to be opened. In coming to a conclusion 
upon this question as to whether the damages shall be paid 
out of the public money, the board should ask this question: 
Will the benefit the public will derive from the location and 
opening of this highway surpass the burthen they will have 
to undergo in paying the damages ? After they have come 
to a conclusion upon this point, they must enter that con¬ 
clusion of record, and if they shall determine that the 
expense will overrun the profits, they must so decide and 
enter an order of record to that effect. In arriving at a 
conclusion upon this point, the board should call to their 
aid all the evidence necessary for them to arrive at a cor¬ 
rect conclusion upon the same. For this purpose they may 
subpoena, examine witnesses and examine maps, and all 
the other documents that they may deem necessary, or 
from which they can obtain any information in reference to 
the subject under consideration. 

VACATION OF PUBLIC HIGHWAYS. 

Having treated of the different methods of establishing 
public highways in this State, we will now give the differ¬ 
ent methods of vacating and establishing highways. It is 
provided by section 43 supra , that “ all highways already 
laid out, or which may hereafter be laid out, which shall not 
be opened and used within six years from the time it is 
laid out, shall cease to be a highway for any purpose what- 


202 


THE BOARD OP COMMISSIONERS. 


ever. But if any distinct part of it has been opened and 
used within six years, such part is a public highway. 
Under this provision there must, in order to establish a 
public highway, be an opening of the same by the proper 
authority, within six years from the time it was laid out 
and established, and it must be used by the public as a 
highway within that time.(u?) If it is opened and not used 
within six years, it ceases to be a highway; and if it is used 
and not opened by the proper authorities, it will not be a 
highway unless the use has been to such an extent as to es¬ 
tablish it by dedication. The question as to whether a 
public highway which has been established by the proper 
authorities can be vacated by non-use, is not well settled 
by the authorities. Professor Greenleaf, in his work on 
evidence says, “ In the case of a public way no length of 
time during which it may not have been used will operate 
of itself to prevent the public from resuming the right, if 
they think proper.” (s) This remark of the professor is 
not very explicit and clear; but we think that he intends 
to convey to his readers this idea: that in order to vacate 
a public highway by non-use, that has been established by 
the proper authorities, there must be an abandonment by 
the public, and that after this the owner must re-enter and 
take possession. The public has the right to use the land 
only, and whenever they cease to exercise this right, the 
true owner can resume his former privilege and take pos¬ 
session and control the land. The supreme court of the 
State of Illinois, in the case of Grub vs. Nichols, says: 
“ Where it appears that the public have ceased to travel a 
road, and have acquired another which accommodates pub¬ 
lic travel, a jury would be warranted in presuming an aban¬ 
donment of the first road.”(m) We are of the opinion 
from the best authorities we have been able to examine, 
that the right to use a public highway may be forfeited by 
the people by non-user; but the exact length of time the 
road must be out of use in order to work a forfeiture, is a 

(/) White vs. Conover, 5 Black. 462; 8 Black. 208; 9 Ind. 103; 10 Ind. 
391; i G. & H. p. 365, sec. 39. (s) 2 Greenleaf, sea. 665. ( w) 1 G. & H. 

365, sec. 43. (m) 36 Ill. 92; 27 Ill. 414; 20 Ill. 181. 



HIGHWAYS.. 


203 


question that is not settled. But we think a total abandon¬ 
ment by the public for a considerable length of time, say 
for two or three years, would be sufficient to raise a pre¬ 
sumption of a forfeiture. But this is a question of fact 
that must to some extent be governed by the circum¬ 
stances of each case. 

But all public higways, or any part of them, without re¬ 
gard to the way and manner they may have been estab¬ 
lished, may be vacated by the board of county commis¬ 
sioners of the proper county, on petition asking for such 
vacation, signed by twelve freeholders of the county, six 
of whom must reside in the immediate neighborhood of 
the highway to be vacated. 

Form for petition to vacate: 

To the Honorable Board of Commis’ners of Vermillion County: 

We, the undersigned freeholders and residents of said 
county, would represent to your honors that a certain pub¬ 
lic highway situate in Vermillion county, Indiana, which 
is described as follows : Commencing at the north-east cor¬ 
ner of section 18, township 17 north, range 9 west, running 
thence east one mile to the north-east corner of section 17, 
township and range aforesaid, thence due north one mile to 
to the north-east corner of section 8, township and range 
aforesaid, has ceased to be used by the public, and is not of 
public utility. We therefore pray your honors to vacate 
and abolish said highway for the reason aforesaid. The 
said highway passes over the land of A. B., C. D., E. F. 
And your petitioners will ever pray. 

A. B. S. F. 

C. D. L. M. 

E. F. M. L. 

G. H. T. H. 

H. H G. W. 

O. P. H. E. 

Before the presentation of the petition to the board, 
you must give notice of the time and place your petiton 
will be presented, by posting up in three of the most pub- 


204 


THE BOARD OF COMMISSIONERS. 


lie places in the neighborhood of the road written or 
printed notices for at least twenty days before the meeting 
of the board, or yon may publish the same in some news¬ 
paper published in the county, for three weeks successively 
before the meeting of the board. 

Form of notice: 


NOTICE. 

FTotice is hereby given that there will be a petiton pre¬ 
sented to the board of commissioners of Vermillion county, 
at their June session, A. D. 1873, for the vacation of the 
following highway, located in Vermillion county, Indiana, 
commencing at the north-east corner of section 18, town¬ 
ship 17 north, range 9 west, running thence east one mile 
to the north-east corner of section 17, township and range 
aforesaid, thence north one mile to the north-east corner of 
section 8, township and range as aforesaid. Said highway 
passes over the land of A. B., C. D., and E. F. 

THOMAS SWAH. 

On the presentation of your petition you must prove 
that the twelve persons who signed the same are freehold¬ 
ers of the county in which the road is located, and that six 
of them reside in the immediate neighborhood of the high¬ 
way ; that you gave notice, either by posting up notices 
twenty days in three of the most public places in the 
neighborhood of the road, or by publishing the same in 
the paper. This you can do by affidavit or by oral testi¬ 
mony. For forms see ante p.-of this work. At the 

time set for presentation of the petition, any person wish¬ 
ing to object to the proceeding must appear before the 
board and make his objections. For forms, see ante p. 
-of this work. 

As it is provided by section twenty-three supra, that, 
“ If any one or more freeholders residing in such county, 
along such proposed highway vacation or change, shall ob¬ 
ject to the same before final action thereon, as not being of 
public utility, other viewers may be appointed,” &c. Hav¬ 
ing, in our remarks upon remonstrance, &c., treated upon 


HIGHWAYS. 


205 


I 


this question, we shall give the form for an objection under 
this section, and refer our readers to ante p. 195 of this 
work. 

Form of objection: 

To the Honorable Board of Commis'ners of Vermillion County: 

We, the undersigned resident freeholders of Vermillion 
county, Indiana, w^ould represent to your honors that we 
reside along the following highway, in said county, com¬ 
mencing at the north-east corner of section 18, township 
19 north, range 9 west, running thence due east one mile 
to the north-east corner of section 17, township and range 
aforesaid, thence north one mile to the north-east corner 
of section 8, township and range aforesaid. Believing that 
said highway is of public utility and a benefit to the neigh¬ 
borhood and public generally, we object to it being vacated 
for the reason that said vacation will not be of public 
utility. 

W. S. 

s. w. 

On presenting this petition to the board, make proof 
that you are freeholders, that you reside in the county and 
near the highway proposed to be vacated. 

As to the mode and manner of objecting for damages, 
see ante p. 196 of this work. 

It is provided by section 45 supra , That all public high¬ 
ways which have been, or may hereafter be used as such 
for twenty years or more, shall be deemed public highways, 
and the board of county commissioners shall have power 
to cause such of the roads used as a highway, as shall have 
been laid out but not sufficiently described, and such as 
shall have been used for twenty years but not recorded, to 
be ascertained, described and entered of record. (t) The 
statute gives no instruction how to proceed in cases of this 
kind, but we think that the land owner, over whose land 
the road passes, ought to be notified of the time and place 
that the proceeding is to take place. But perhaps this is 


$Act 1867, p. 133. 



206 


THE BOARD OF COMMISSIONERS. 


unnecessary, irom the fact that every man is presumed to 
know the law, and if the public has used a road running 
through an individual's land as a highway for twenty years, 
he is presumed to know that it is a public highway. We 
think that the better way to proceed in such case, is to file a 
petition with the board, setting out the facts. 

FORM FOR THE PETITION. 

To the Honorable Board of Commis’ers of Vermillion County: 

We, the undersigned, would represent to your honors 
that a certain road leading from the north-west corner of 
section 20, township 17, range 9 west, to the north-west cor¬ 
ner of section 19, same township and range, has been used 
by the public for a public highway for more than twenty 
years. We therefore pray your honors to ascertain the fact 
and describe said road by its accustomed boundaries and 
enter it of record as a public highway. A. II. 

H. A. 

On the presentation of your petition to the board make 
proof that the road has been used for a highway for twenty 
years or more. It is sometimes thought that a highway 
can not be established under this section unless the entire 
route has been traveled and used by the public for twenty 
years. We think that if the route petitioned for has been 
used by the public in the main as a highway for twenty 
years, it will be sufficient. If there has been a slight devi¬ 
ation from the thread of the road which is being used to 
avoid an obstruction of any kind, it will not alter or change 
the road.(/) If the board, after hearing the proof, is satis¬ 
fied that the road has been used by the public for twenty 
years or more, they must enter it of record, and order it 
kept in repair. 

Section 15, supra, provides for vacation and change of a 
public highway, and it frequently happens that farmers and 
land owners desire to change a highway from one place to 
another, or rather to vacate one road and establish another, 


(/) Gentlemor v. Soule, 32 Ill. 271; Act of 1867, p. 133. 



HIGHWAYS. 


207 


which will be of equal value to tne public, on a different 
route. When this happens he can accomplish both of his 
objects at the same time. We give the form of the peti¬ 
tion 


PETITION FOR VACATION AND CHANGE. 

To the Honorable Board of Commissioner's of Vermillion county: 

We, the undersigned, would represent to your honors 
that the public utility demands that the following highway 
situated in Vermillion county, Indiana, be vacated and 
changed, to-wit: Commencing at the south-east corner of 
section 8, towmship 17 north, range 9 west, running due 
north one mile to the north-east corner of said section. 
We therefore pray your honors to vacate said highway and 
change and locate it on the following route in said county: 
Commencing at the north-east corner of section 17, town¬ 
ship and range as aforesaid, thence due east one mile to the 
south-east corner of section 9, township and range afore¬ 
said, thence due north one mile to the north-east corner of 
said section. The highway proposed to be vacated passes 
over the land of W. S., T. C. W., J. H. and C. D., and the 
road proposed to be located passes over the land of G-. H., 
T. TI. and S. M. And we will ever pray. 


w, 

K, 

v, 

Q, 

V, 

P, 

T, 

0 , 

s, 

H, 

K, 

L, 


The same notice must be given in this case as in other 
cases for the location and vacation of highways. You must 
make the same proof as to the qualification of your peti¬ 
tioners as in other cases. 

It is provided by section 24, supra, that whenever any 
person shall procure the establishment of a highw r ay, pri¬ 
vate or public, by change of one already established on or 
across his own land, before the same can be received by the 
public he must make the new road as good as the old one. 


208 


THE BOARD OF COMMISSIONERS. 


This part of said section is ambiguous and hard to under¬ 
stand, and it can only be explained by former statutes bear¬ 
ing on the same point. The statute of 1838, section 12, p. 
494, provides that 11 Any person or persons wishing to cul¬ 
tivate land through which any county road may run may 
petition the board for permission to turn such road on his 
or her or their own land,” &c. Sect. 32 of the act of 1843, 
liev. Statutes, p. 330, provides that “ Any person or persons 
■wishing to enclose land through which any State or county 
highway may run may petition the board for permission to 
turn such highway on his or her or their own land.” By 
reference to these statutes we have come to the conclusion 
that an individual who owns land in this State over -which 
a highway may pass, may, on petition signed by himself 
alone, have the same vacated and changed to a different 
route on his land. But in order to do this he must own all 
the land over which the road proposed to be vacated and 
the road proposed to be located runs.Q/) 

PETITION. 

To the Honorable Board of Commis’ers of Vermillion County: 

The undersigned, your petitioner, would represent to your 
honors that he is the owner of section 19, township 17 north, 
range 10 west, situated in Vermillion county, Indiana, and 
that a public highway leading from Eugene to Newport in 
said county runs through said land on the half section line 
of said section, commencing at the south side and runs the 
whole length of the same to the north side of said tract; 
that the said road is forty feet wide, and occupies about five 
acres of the best land of said section. And he further rep¬ 
resents that it would be much to his advantage to have said 
highway vacated and changed to the following route: com¬ 
mencing one quarter of a mile east from the south-west cor¬ 
ner of said section, running thence due north one mile; he 
says that he is the owner of all the land over which the now 
existing highway passes, and also owns all the land over 
which the proposed road will run. He therefore prays your 


(g) Foster v. Swear and others, 8 Blackf. 289. 



HIGHWAYS. 


209 


honors that you vacate, change and locate said highway as 
set out above at the expense of your petitioner. And he 
will ever pray. JOHN JONES. 

Before presenting this petition to the board you must 
give twenty days’ notice of the time and place the same will 

be presented. For forms see notices on ante p.-, of this 

work; or by three weeks’ notice in a newspaper published 
in the county. Any person who lives in the neighborhood 
of the road may appear and object to such change for any 
reason that he may see proper to present. If the board is 
satisfied that the petition is correct, and that the proper no¬ 
tice has been given, they must appoint three disinterested 
viewers to examine said proposed vacation, change and lo¬ 
cation, and if they are satisfied that the same will not be 
detrimental to the public interest they must so report at the 
next meeting of the board, and the board must enter an 
order that the prayer of the petitioner be granted, if the 
petitioner will make the new road as good as the old one, 
and a time should be fixed for the petitioner to prepare the 
new road for use. At the end of this time the petitioner 
should report to the board that he has said road ready for 
use; the board, if satisfied that such is the case, they should 
accept said new road and order it kept in repair, vacate the 
old one and make a final order in the premises. 

Having treated of the location, vacatiou and change of 
highways running in one county, we now come to highways 
running in more than one county. The statute is as fol¬ 
lows: 


Highways Running into More than One County. 

Section 1 . Be it enacted by the General Assembly of the 
State of Indiana , That if twenty-four freeholders of any 
county shall petition the board of commissioners of such 
county for the location, change or vacation of any highway 
running into more than one county, six of which freehold¬ 
ers shall reside in the immediate neighborhood of such high¬ 
way, setting forth in such petition the beginning, course and 
termination of the highway proposed to be located or vaca- 


210 


THU BOARD OF COMMISSIONERS. 


ted, or of the change desired to be made, together with the 
names of the owners and occupants or agents of the lands 
through which the same may pass, the auditor of such 
county shall notify the auditors of all the counties in which 
such highway is to be run, vacated or changed, of the filing 
of such petition, accompanying such notice with a copy of 
such petition, which shall be by such auditors laid before 
their respective boards of commissioners at their next ses¬ 
sion thereafter, when such boards shall appoint commis¬ 
sioners according to the regulations hereinafter provided. 

Sec. 2. Upon the board of commissioners of the county, 
in which such petition is first filed, being satisfied that 
notice thereof has been given at least twenty days before 
the session of such board at which such petition is to be 
heard, by publication in a newspaper of each county in 
which such highway is to be run, vacated or changed, for 
three weeks successively, or by written or printed notices 
posted up in three of the most public places in the neigh¬ 
borhood of such highway, in each of such counties, such 
board shall appoint a commissioner to examine such high¬ 
way. 

Sec. 3 . Immediately upon the appointment of such com¬ 
missioner, the auditor of such county shall notify the audi¬ 
tors of all the counties interested, specifying in such notice 
the time and place when such commissioners shall meet to 
commence the examination of such highway; when such 
last mentioned auditors, and the auditor of the county 
where such petition is first filed, shall issue precepts to the 
sheriffs of their respective counties, directing them to notify 
such commissioners of such appointments, and the time and 
place of their meeting. 

Sec. 4. Each of such boards shall appoint one commis¬ 
sioner, and in case the number is equal and can not agree, 
the commissioners thus appointed shall appoint another 
who shall perform the same duties, and receive the same 
fees as those first appointde. 

Sec. 5 . At the time and place designated in the notice 
given by the auditor of the county in which such petition 
is first filed, such commissioners shall meet, and having first 


HIGHWAYS. 


211 


taken an oath, to be administered by some authorized officer, 
to faithfully perform their duties, shall proceed to examine 
the highway proposed to be located, vacated or changed, 
and in such examination may employ a surveyor, and a 
necessary number of chain carriers and markers. 

Sec. 6 . After such commissioners shall have completed 
their examination, they shall draw up a report of their pro¬ 
ceedings setting forth the highway proposed to be located, 
vacated or changed, by course and distance, and recom¬ 
mending therein according to the opinion of the majority 
of such commissioners, either that the prayer of such peti¬ 
tion shall be granted or rejected, a copy of which report 
shall be returned to the board of commissioners of each of 
the counties interested at their next session thereafter. 

Sec. 7. Upon the return of such report, the board of 
commissioners shall proceed to determine the prayer of such 
petition, and if there be no remonstrance against the same, 
and it is recommended in such report, such board shall de¬ 
clare it granted, and shall direct the auditor of such county 
to notify the auditors of all the other counties interested 
thereof; when, if there be no remonstrance pending in 
either county interested, the auditor of each of such coun¬ 
ties shall notify the supervisors of the road districts in his 
county through which such highway passes, or the change 1 
is made, when such supervisors shall open so much of such 
highway as lies in their respective districts, provided that 
in case of a highway declared vacated, no notice to super¬ 
visors shall be necessary. 

Sec. 8. If such commissioners do not recommend the 
prayer of such petition be granted, the boards of commis¬ 
sioners of the counties interested, shall order it to be dis¬ 
missed ; but such order of dismissal shall not be a bar for 
other petitions thereafter concerning the same subject mat¬ 
ter. 

Sec. 9. If, at the session of the board of commissioners 
at which the report of the commissioners appointed to 
examine such highway, is presented, any person shall remon¬ 
strate against granting the prayer of the petition, setting 

15 


212 


THE BOARD OF COMMISSIONERS. 


forth in writing that he is damaged in a sum mentioned, by 
the location, vacation, or change of such highway, to the 
truth of which he shall take and subscribe an oath, such 
board shall appoint three persons, residents of such 
county, to review that part of such highway whereof such 
complaint is made, and shall direct the auditor of such 
county to notify all the auditors of the other counties inter¬ 
ested, of such remonstrance, when further proceedings 
touching such petition shall be continued until the ensuing 
term of such boards. 

Sec. 10. Such reviewers, at the time and place designa¬ 
ted by the board of commissioners to whom such remon¬ 
strance is presented, shall meet and have taken an oath before 
some officer authorized to administer oaths, to faithfully per¬ 
form their duties as such reviewers, shall proceed to exam¬ 
ine that part of such highway, or the change thereof com¬ 
plained of, and having done so, shall at the next term of 
such board, report their proceedings to such board, in which 
report they shall specify the amount of damages sustained 
by the person remonstrating, if any; whereupon such board 
shall determine whether the damages assessed are greater 
than the utility of the proposed highway or change, and if 
they shall be of opinion that the prayer of the petition 
should not be granted, they shall direct the auditor of such 
county to notify the auditors of the other counties interested 
thereof, and continue further proceedings in the premises 
until the next term thereafter; but if they shall be of opin¬ 
ion that the damages should be paid and the prayer of the 
petition granted, they shall direct such auditor to notify the 
auditors of the other counties interested of the amount of 
such damages, and shall continue further proceedings to the 
next term thereafter. 

Sec. 11. If more freeholders residing along the highway 
proposed to be located, or vacated, or change to be made, 
than those of the same county petition therefor, remonstrate 
against granting the prayer of such petition therefor, the 
board of commissioners of such countv shall decide against 
such petition, and shall direct the auditor of such county 
to notify the auditors of all the other counties interested 


HIGHWAYS. 


213 


thereof, and continue further proceedings in the premises 
until the ensuing term. 

Sec. 12. At the next term after the reception of notice 
of any remonstrance, and the proceedings thereon, the audi¬ 
tors of such counties shall lay the same before their respect¬ 
ive boards of commissioners, who shall determine whether 
the prayer of the petition ought to be granted, and shall 
notify the auditor of each county interested thereof; and 
it the-boards of commissioners of a majority of such coun¬ 
ties decide in favor of such petition, at the term of such 
boards when the same is ascertained, such highway shall be 
declared located, vacated or changed, and such supervisors 
notified thereof as hereinbefore provided, but if a majority 
of such boards decide against such petition, it shall be de¬ 
clared dismissed whenever it is so ascertained; and all dam¬ 
ages declared assessed shall be paid equally by the counties 
interested; and if such reviewers shall fail to assess any 
damages, the person asking the same shall pay the cost of 
such review. 

Sec. 13. Such commissioners appointed to examine such 
highway, and such reviewers, shall receive each one dollar 
and fifty cents for every day they may be necessarily em¬ 
ployed, and such surveyor, chain carriers and markers shall 
receive such compensation as the board of county commis¬ 
sioners, where such petition is first filed shall deem reason¬ 
able, to be paid equally by each county interested. 

Sec. 14. Whenever a highway is located, vacated, or 
changed, the order therefor shall be entered of record in the 
order book of the board of commissioners of each county 
interested, in which county such highway or change thereof 
shall be particularly described by course and distance. 

The above fourteen sections relates entirely to the loca¬ 
tion, change and vacation of public highways running in 
more than one county. In order to establish a highway 
under these sections, the first thing to be done is to get up 
your petition. In drafting the petition be careful to get in 
it all the requirements of the law, otherwise you may be 
put to useless trouble and costs. The petition should set 
forth the beginning, course and termination of the highway 


214 


THE BOARD OF COMMISSIONERS. 


proposed to be located and established, together with the 
names of each owner and occupant, or agent, of the land 
through which the same may pass. If the land is unoccu¬ 
pied, and you are not acquainted with the name of the own¬ 
er or owners, and you can not ascertain the same, the stat¬ 
ute is silent as to what shall then be done. The practice 
act provides “that when the plaintiff is ignorant of the 
name of the defendant such defendant may be designated 
in any pleading or proceeding by any name, and when his 
true name is discovered the pleading or proceeding may be 
amended accordingly either before or after service of the 
summons/’(178) But this would not be a safe rule to fol¬ 
low in drawing a petition of this kind, because the law de¬ 
clares in the most positive manner that you must set out the 
names of the owners, &c. The better way under such cir¬ 
cumstances would be to designate the land as the S. "VV. 
&c., the name of the owner being unknown to your peti¬ 
tioner. At least you should designate the land in such a 
way that if the owner should happen to see the petition he 
would know whose land was meant.(179) As to who are 
proper petitioners see ante, p.-. 

The petition must then be signed by twenty-four free¬ 
holders, six of whom must reside in the immediate neigh¬ 
borhood of the road. 

FORM OF PETITION. 

To the Honorable Board of Commissioners of Vigo County: 

The undersigned, residents of said county, Would repre¬ 
sent to your honors that the public convenience demands 
the location and establishment of a public highway through 
the counties of Vigo and Parke, in the State of Indiana, on 
the following route: Commencing at the south-east corner 
of section 9, township 15 north, range 10 west, running 
thence due north on the section line dividing the aforesaid 
section one mile to the county line dividing the county of 
Vigo from the county of Parke, thence due west on said 

(178) 2 G. & H., p. 119, sec. ioo. (179) Elston et al. v. Board of Trustees 
of Crawfordsville, 20 Ind. 272. 



HIGHWAYS. 


215 


county line one mile to the north-west corner of said sec¬ 
tion, thence due north on the section line dividing section 
eight from section seven, township and range as aforesaid, 
one mile, there terminating. Said highway will pass over 
the lands owned and occupied by John Smith and Thomas 
Brown, in the county of Vigo, and over the lands owned 
and occupied by John Saylor, Henry Helt, Smith Eobb and 
John Taylor, in the county of Parke. "We therefore pray 
your honors to locate and establish a public highwayon the 
above route, in all things according to law. 

A. , E., L, M., Q., TJ., 

B. , F., J., K, R, V., 

C. , G., K, O., S., W., 

D. , H., L., P., T., X. 

But before any action can be taken on your petition by 
the board, you must give not less than twenty days’ notice 
of the time that the petition will be presented to the board 
for their consideration, by publication in a newspaper in each 
county for three weeks successively,, or by written or print¬ 
ed notices in three of the most public places in the neigh¬ 
borhood of such highway in each of such counties for the 
same length of time. 

FORM OF NOTICE. 

Notice .—Hotice is hereby given that there will be a peti¬ 
tion presented to the Board of Commissioners of Vigo coun¬ 
ty, at their June session, 1873, asking for the location and 
establishment of a public highway through the counties of 
Vigo and Parke, in the State of Indiana, on the following 
route: Commencing at the south-east corner of south-east 

-quarter of section -, township - north, range- 

west, running thence due north on the section line dividing 
section-from section-, township and range as afore¬ 

said, through the county of Vigo to the county line divid¬ 
ing the county of Vigo from the county of Parke, thence 
due west on said county line one-half mile to a stake, thence 
due north through the county of Parke on the half section 


(d) i Res. by G. & H., sec. 2, p. 359. 






216 


THE BOARD OF COMMISSIONERS. 


line dividing the north-east quarter of section-> town¬ 

ship and range aforesaid, from the north-west quarter of 

said section to the section line dividing section -- from 

-, in township and range aforesaid, there to terminate 

Said public highway passes over lands owned and occupied 
by John Smith and Thomas Brown, in the county of Vigo, 
and over lands owned and occupied by John Saylor, Henry 
Bowers, Smith Robb and John Ray of the county of Parke. 

April 1, 1873.(0 JOHN" SMITH. 

If notice is given by publication in a newspaper of each 
county take your notice to the printers and inform them 
of what you want, giving the time you desire the notice to 
be published, and be sure that you get it in time for three 
weeks successive publication before the board meets that 
you are to present your petition to. But if you give notice 
by posting up written or printed notices in three of the 
most public places in each county in the neighborhood of 
such highway, take your notices and post them up at least 
twenty days before the meeting of the board. At the time 
of the meeting of the board, at which you desire to present 
your petition, take your petition and a copy of the notice 
and go before the board, hand your petition to the auditor 
of the county and request him to mark the same filed. If 
the notice was by publication you must get the affidavit 
of the publisher of each paper to make an affidavit as to 
the time the same was published in their respective papers. 
If the notice was by posting up written or printed notices, 
take an exact copy of the notices with you when you go to 
present your petition. After this is done you can then intro¬ 
duce your evidence. You must then show that the persons 
w T hose names are attached to the petition are freeholders 
and residents of the county, that six of them reside in the 
immediate neighborhood(21) of the road, and that there are 
twenty-four in all. 

You must show, also, that the highway passes over the 

(/) The route should be the same in the notice as in the petition. (21) The 
words “ immediate neighborhood,” as used in the first section of the highway 
act, seems to be indefinite,, and will be bent to suit the circumstance. 




HIGHWAYS. 


217 


lands of the persons named in the petition and over no 
other. That the notices were posted up in three of the 
most public places in each county in the neighborhood of 
the (road) highway, and present a copy of the notice to the 
board, and inform them under oath that the same is a true 
copy of all the notices stuck up in each county. And 
before you leave, file all your papers with the board. If the 
board are satisfied that all the requirements of the law have 
been complied with, they must appoint a disinterested per¬ 
son commissioner to view the proposed location, vacation or 
change. After this is done the auditor of such county shall 
notify the auditors of all the counties interested, specifying 
in such notice the time and place appointed for the commis¬ 
sioners to meet to commence the examination of such high¬ 
way, accompanying the same with a copy of the petition. 
On the reception of this notice the auditor of the county 
where the petition is sent must lay the same before the 
board of commissioners of his county. On the presenta¬ 
tion of the notice and petition to such boards, they ‘must 
immediately appoint one commissioner from their county. 
As soon as this is done the different county auditors of all 
the counties interested must issue their precepts to the 
sheriffs of their respective counties, commanding them to 
notify the commissioners of their appointment and the time 
and place fixed for them to meet. At the time and place 
designated in the notice by the auditor where the petition 
was first filed, such commissioners shall meet, and having 
first taken an oath, to be administered by some authorized 
officer, to faithfully perform their duties, shall proceed to 
view the highway proposed to be located, vacated or changed. 
After they have completed their examination, they must 
make out their report in writing, setting forth the highway 
proposed to be located, vacated or changed by course and 
distance, and must each sign the same and file a copy with 
the board of commissioners of each county interested, and 
must recommend in said report that the prayer of the peti¬ 
tion be granted or rejected. At the next meeting of the board 
of commissioners the viewers must file their report; on the 
filing of the same, the board of commissioners must pro- 


218 


THE BOARD OF COMMISSIONERS. 


ceed to determine the prayer of the petition, and if there 
be no remonstrance against the same, and it is recommended 
in the report of the viewers, the board must grant the prayer 
of such petition, and shall direct the auditor of the county 
to notify the auditor of all other counties interested thereof; 
when, if there be no remonstrance pending in either county 
interested, the auditor must notify the supervisors of the 
different road districts in his county through which the 
road passes of the action of the board, and the supervisors 
of each district must proceed to open said road according 
to law. But if the viewers report unfavorably to said road, 
the case will be dismissed; but will, under section 8 of the 
above act, be no bar to another proceeding of the same 
character. 

But if, at the session of the board of commissioners, 
when the report of the viewers is presented, any person 
shall remonstrate against granting the prayer of the peti¬ 
tion, setting forth in writing that he is damaged in a certain 
sum, which he must mention, by the location, vacation or 
change, to the truth of which he shall take and subscribe 
an oath, such board shall appoint three persons, residents 
of such county, to review that part of the highway whereof 
the complaint is made. On this being done, the board, 
when the remonstrance is filed, must direct their auditor to 
notify all the auditors of the other counties interested of the 
filing of the remonstrance, and the case shall then be con¬ 
tinued. The reviewers appointed by the board must meet 
at the time and place designated by the board from whom 
they received their appointment, and after taking the oath 
required by law, must proceed to examine the premises and 
assess the damages, if any, that such individual will sustain 
by reason of the location, vacation or change complained 
of. And after they have made a thorough examination of 
the proposed location, vacation or change, they must at the 
next meeting of their county board report to them their 
proceedings in writing and give the amount of damages 
that such remonstrator will sustain by reason of the location, 
vacation or change of such highway. The board to whom 
the report is made must take the same under advisement. 


HIGHWAYS. 


219 


and after giving tlie same a careful consideration, if they 
are of the opinion that the damages assessed are greater 
than the utility of the proposed location, vacation or changes 
of such highway, and if they are of the opinion that the 
prayer of the petition ought not to be granted, they must 
so decide; and they must direct the auditor of their county 
to notify the auditors of the other counties interested, and 
the cause must be continued until the next term of the 
commissioners’ court. But if they are of the opinion that 
the damages are reasonable and ought to be paid, and the 
prayer of the petition granted, they must direct their audi¬ 
tor to notify the auditors of the other counties interested 
of the amount of such damages, and shall continue further 
proceedings to the next term thereafter. 

If more freeholders living along the proposed highway 
to be located, vacated or changed, than those petitioning 
for the same, shall remonstrate against granting the prayer 
of such petition thereof, the board of commissioners of that 
county must decide against such petition, and they must 
direct the auditor of such county to notify the auditors of 
all the other counties interested, and all proceedings in the 
premises must be continued until the next term. 

At the next term after the reception of notice by the 
auditors of the different counties interested, of the filing of 
the remonstrances, the auditor shall lay such remonstrances 
before them, and each board shall determine for itself, 
whether the prayer of the petition ought to be granted, and 
each shall inform the others of their action in the premises, 
and if the majority of such boards shall decide in favor of 
such location, change or vacation, at the term of such 
boards, when the same is ascertained the highway shall be 
declared located, vacated or changed, and such auditors 
must notify the supervisors in the different road districts of 
his county through which said road passes, of the fact, and 
direct them to open said road according to law. But if 
the majority of said boards shall declare against such road, 
the same shall be dismissed whenever it is so ascertained, 
and the costs and damages shall be paid equally by all the 
counties interested; but if the reviewers shall fail to assess 


220 


THE BOARD OF COMMISSIONERS. 


any damages, the costs of such review must be taxed 
against such remonstrator. The viewers in such cases are 
allowed one dollar and fifty cents per day, and chain-carriers, 
and surveyors, and markers shall be allowed such sum as the 
board of commissioners of the county where the petition 
was first filed shall deem reasonable. 

Whenever a highway is located, vacated or changet 
under the above fourteenth section, the order thereof shall 
be recorded in the order-book of each county interested in 
the road, and it must be particularly described in said re¬ 
cord. 

Form of remonstrance for damages: 

To the Honorable Board of Commissioners of Parke County: 

The undersigned, your petitioner, would represent to 
your honors that he is the owner of the north-east quarter 

of section-, township-north, range-west, and 

that the highway known as the Taylor road, running 
through the counties of Vigo and Parke, which commences 
at the south-east corner of the south-east quarter of sec¬ 
tion -, township and range aforesaid, running thence 

north on the section line dividing section-from sec¬ 
tion -, township and range aforesaid, one-half mile to 

the county line dividing the county of Vigo from the 
county of Parke, running thence due west one-half mile 
on the county line to a stake, thence due north on the half 

section line dividing the north-east quarter of section- 

from the north-west quarter of said section, township and 
range aforesaid, there terminating, which petition for the 
location of the above highway is now pending before your 
honors; your petitioner remonstrates against your honors 
granting the prayer of said petition, for the reason that he 

is the owner of the north-east quarter of section -, 

township -, range- west, and that said highway 

passes over the same, and that he is damaged by reason of 
the location of said road, or public highway, in the sum of 
one thousand dollars in this: (here give the reason why he 
is damaged) he therefore asks your honors to appoint 






HIGIIWAYS. 


221 


three reviewers to view said highway, and assess the dam¬ 
ages that lie may sustain by the location of the said high¬ 
way, and he will ever pray. 

THOMAS BOWERS. 

Thomas Bowers being duly sworn, upon his oath says 
that the matters and things set forth in the above petition 
are true as he verily believes. 

Form of remonstrance under section 11: 

To the Honorable Board of Commissioners of Vigo County: 

The undersigned, your petitioners, would represent to 
your honors that we reside along the line of higliwa}^ 
known as the Taylor Road, in Vigo county, Indiana, which 
road is proposed to be located and opened through the 
counties of Vigo and Parke, on the following route, com¬ 
mencing at the corner of the south-east quarter of section 
—, township — north, range — west, running thence due 
north on the section line dividing section — from section—, 
township and range aforesaid, one-half mile to the county 
line, thence west on said county line one-half mile to a 
stake, thence north on the half section line dividing the 
north-east quarter of section — from the north-west quar¬ 
ter of said section, township and range aforesaid, one-half 
mile to the section line dividing section — from section —, 
township and range aforesaid, thence to terminate. The 
petition for the location of a highway is now pending be¬ 
fore your honors. We think said highway, if established, 
would not be of public utility. We therefore remonstrate 
against the granting of the prayer of said petition, and 
against the location of said highway, as prayed for in the 
petition. June 1st, 1873. 

[Here get the names of more freeholders residing along 
said highway than signed the petition.] 

Report of Viewers under section 6 supra: 

To the Honorable Boards of Commissioners of Vigo and Parke 

Counties: 

We, John Hunt, who was appointed by the honorable 


222 


THE BOARD OF COMMISSIONERS. 


board of commissioners of Parke county, at its session in 
June, 1873, and Thomas Dowling, who was appointed by 
the honorable board of commissioners of Vigo county, at 
its June session, 1873, commissioners to examine the fol¬ 
lowing highway, to be located and established through 
Vigo and Parke counties, on the following route, com¬ 
mencing at the south-east corner of the south-east quarter 
of section —, township — north, range — west, in Vigo 
county, running thence north on the section line dividing 
section — from section —, township and range aforesaid, 
one-half mile to the county line dividing the county of 
Vigo from the county of Parke, thence west on said county 
line one-half mile to a stake, thence north on the half sec¬ 
tion line dividing the north-east quarter of section — 
township and range aforesaid, from the north-west quarter 
of said section, one-half mile to the section line dividing 
section — from section —, in township and range afore¬ 
said, there terminating, would report to the boards that, 
after taking an oath before Esquire Taylor, to faithfully 

perform our duties as such viewers, we met at-, in Vigo 

county, in the State of Indiana, on-day of-, 1872, 

pursuant in all things to the order of the board of com¬ 
missioners of Vigo county; we did then and there proceed 
to view and examine said proposed highway, and after a 
thorough examination, and acquainting ourselves with the 
wants of the neighborhood, we are of the unanimous 
opinion that the prayer of the petition ought to be granted. 
We therefore recommend accordingly. We, in our exam¬ 
ination, marked and staked the aforesaid road off, by metes 
and bounds, by driving stakes on each side of said route. 

June —, 1873. 


JOHN HUNT, \ n 

THOMAS DOWLING, f Commssi °ners. 


Report of Viewers under Sections Nine and Ten , Supra. 

To the Honorable Board of Commissioners of - County: 

The undersigned, citizens of the county of-, who were 

appointed by your honors at the June session, viewers to 
review a part of the public highway running through the 






HIGHWAYS. 


223 


counties of Parke and Vigo, known as the Taylor Roaa, 
and which is located on the following route: Commencing 
at the southeast corner of the southeast quarter of section 
—, township — north, range — west, running thence north 
on the section line, dividing section — from section —, in 
township and range aforesaid, one-half mile to the county 
line dividing the county of Vigo from the county of Parke, 
running thence west on said county line one-half mile to a 
stake; running thence north on the half section line divid¬ 
ing the northeast quarter of section —, township and range 
aforesaid, from the northwest quarter of said section, one- 
half mile to the section line dividing section — from section 
—, township and range as above, there terminating, beg 

leave to report to your honors that on — day of-, 1873, 

we met at the house of-, near said road, and after taking 

the oath required by law to faithfully discharge our duties, 
we did proceed to that part of the above described highway 
the locating of which was said to be damaging to the farm 
and residence of Thomas Bowers, and after a careful exam¬ 
ination of the location of the highway and the premises of 
Mr. Thomas Bowers, we are of the unanimous opinion that 
he will be damaged by reason of the location of the above 
described highway in the sum of five hundred dollars. We 
therefore assess his damages at that amount. 

HENRY TATE, 1 

JOHN DOE, V Viewers. 

CHARLES NEWMAN, J 

June —, 1873. 

Form of Notice of the Auditor under section 1. 

Auditor’s Office, Terre Haute, Indiana, 1 

June -, A. D. 1873. j 

Mr. John Tate , Auditor of Parke County , Indiana: 

You are hereby notified that on — day of June, there 
was a petition presented and filed with the board of com¬ 
missioners of Vigo county, Indiana, for the location of a 
public highway through the counties of Vigo and Parke, 
signed by twenty-four resident freeholders of this county, 
as is shown by the petition, a copy of which is hereto 
attached, marked A. 


224 


THE BOARD OP COMMISSIONERS. 


Iii witness whereof I have hereunto set my hand and seal 
of my office. 

[l. s.] JOHN' SHORT, Auditor of Vigo County. 

Form of notice by the Auditor in section 9, supra. 

Rockville, Parke Co., Ind., June, A. H., 1873. 

To Mr. John Short , Auditor of Vigo county , Indiana: 

The Board of Commissioners of the county of Parke 
have directed me to notify you of the fact that one Thomas 

Bowers, ©n the - day of-, A. D., 1873, fil^d with 

the Board of Commissioners of the county of Parke, a pe¬ 
tition in writing, and under oath, remonstrating against 
granting the prayer of the petition and the location of the 
highway known as the Taylor road, running through the 
counties of Vigo and Parke, for the reason that he will be 
damaged in the sum of one thousand dollars by reason of 
the location of the aforesaid highway across his farm, which 
will more fully appear by reference to the petition, a copy 
of which is hereto attached marked B. In witness whereof 
I have hereunto set my hand and official seal. 

[seal.] J. T., Auditor of Parke county. 

Form of notice under section 7, supra. 

Terre Haute, Ind., June, A. D., 1873. 

To John Tate , Auditor of Parke county , Indiana: 

The Board of Commissioners of Vigo county, at their 
June session, 1873, directed me to notify you that at the 
aforesaid session the viewers appointed by the honorable 
Board of Parke county and the honorable board of 
Vigo county, to view a proposed highway running 
through both of the aforesaid counties, and which is known 

as the Taylor road, having on - day of- reported 

favorable to the location of said highway and in favor of 
the prayer of the petition, and the Board of Commissioners 
of the county of Vigo thereupon, by an order entered of 
record, declared the prayer of the petition granted, a copy 
of which order is herewith attached marked C. All of 
which you will take notice. 





HIGHWAYS. 


225 


In witness whereof I have hereunto set my hand and 
affixed the seal of the Board of Commissioners of Vmo 

o 

county. 

[seal.] JOHN SHORT, Auditor of Vigo County . 

Form of petition for vacation of highways running in more than 
one county . 

To the Hon. Board of Commissioners of Vermillion county: 

We, the undersigned, resident freeholders of said county, 
would represent to your honors that a certain highway run¬ 
ning through the counties of Vermillion and Vigo, in the 
State of Indiana, which commences at the north-west corner 
of section 35, township IT, range 10 west, in Vermillion 
county, Indiana, running thence south one mile to the south¬ 
west corner of said section, thence south through the county 
of Vigo one mile to the north-west corner of section 2, town¬ 
ship -, range 9 west, is no longer of public utility, we 

therefore pray your honors to vacate said highway for the 
reason aforesaid. Said highway passes over the land of J. 
L., II. S. and C. W. And we will ever pray. 


W, 

O, 

A, 

Y, 

M, 

E, 

II, 

N, 

F, 

S., 

P-, 

B, 

L„ 

Q, 

D, 

H, 

C, 

K, 

M, 

G, 

T, 

Z, 

K, 

I. 


As to notice, &c., on the filing of this petition, see High¬ 
ways running in one county. 

NOTES. 

In the case of Little vs. Hamilton and others, 24 Ind. 146, appeal from the 
Hamilton Circuit Court, Elliott, C. J., says: 

Thompson and others, to the number of twelve, filed a petition before the 
Board of Commissioners of Hamilton county praying for the location and estab¬ 
lishment of a public highway in said county; and the record states that “ the 
board, after examination of the matter, being satisfied that the requirements of 
the statute in such case made and provided have been complied with by the pe¬ 
titioners in all matters relating to the petition herein,” appointed viewers to view 




226 


THE BOARD OF COMMISSIONERS. 


the proposed highway, and report as to its public utility at the next session of the 
board. At the succeeding term of the board two of the viewers appointed re¬ 
ported in favor of the proposed highway. O’Brien then “appeared as the friend 
of the court” and filed a written dismissal of one of the petitioners, and also of¬ 
fered to file an affidavit that James Carson, another of the petitioners, was not a 
resident of Hamilton county, &c., and that the names of John and Benjamin 
Devaney were on that day placed on the petition. The court refused to enter¬ 
tain the motion, and rightly. O’Brien was not a party to the record and had no 
right to be heard in the case at that time. John Little, resident, through whose 
land the proposed highway passed, then appeared and filed his remonstrance 
against it. The reasons assigned are: 1 st. The proposed highway is not of 
public utility. 2 d. That a part of it is already a public highway. 3 d. Be¬ 
cause there is another road within one-fourth of a mile of the one proposed. 
The board thereupon appointed three reviewers to review it, and the matter was 
continued. 

At a subsequent session of the board Amos Pettyjohn, one of the petitioners, 
filed, as to himself, a dismissal of the petition, and then O’Brien again moved to 
dismiss, because there were not twelve freeholders of the county parties to the 
petition. The board overruled the motion, and, we think, correctly, because the 
names of twelve persons remained on the petition, who, from the statements in 
the record, we must presume were resident freeholders of the county. 

The persons appointed to review the proposed highway, afterward reported in 
favor of it as one of public utility. Little then filed a claim for damages, and 
the board appointed viewers to assess and report the same, if any, to the board. 

The last named viewers reported that the proposed highway was of public 
utility, and that the said Little would sustain no damage thereby. The board 
thereupon ordered a record of said highway to be made, and that the same 
should be opened and kept in repair. 

Little appealed to the circuit where the case was tried by a jury, who found 
that the highway proposed was of public utility, and against Little’s claim for 
damages. Motion for a new trial overruled and Judgment on the finding of 
the jury, that the road is of public utility, and against Little for costs. 

Little appeals to this court. Before the trial of the cause in the circuit court, 
he filed the affidavit of James Carson, one of the petitioners, stating that he was 
not, at the time the same was presented to the Board of Commissioners, a resi¬ 
dent of Hamilton county, and thereupon moved the court to dismiss the cause, 
on the ground that there were not twelve resident petitioners of the county join¬ 
ing in the petition at the time it was presented to the Board of Commissioners. 
The circuit court overruled the motion, and that ruling is now urged as a cause 
for reversing the case. 

We do not think the court erred in overruling the motion. The objection 
goes to the capacity of one of the petitioners to join in the petition; and, as the 
objection did not appear on the petition, if it could have been presented at any 
time after the appointment of the first viewers, it should have been raised by a 
plea in abatement, and not by motion. But even if raised by such plea in the 
circuit court, it would have been too late. The statute provides that if the objec¬ 
tion be not taken “ either by demurrer or answer, the defendant shall be deemed 


HIGHWAYS. 227 

to have waived the same, except only the objection to the jurisdiction of the 
court over the subject of the action,” &c. 2 G. & H., § 54 , p. 81 . 

The provision is found in the civil code, but is applicable to trials before the 
Board of Commissioners. The ninth section of the “ act providing for the 
organization of county boards,” &c., 1 G. & H., 249 , provides that “ such com¬ 
missioners shall adopt regulations for the transaction of business, and in the 
trial of causes they shall comply, so for as practicable, with the rules of conduct¬ 
ing business in the circuit court.” Little appeared in the commissioners’ court r 
and made no objection to the capacity of the petitioners to file the petition, but. 
answered to the merits cf the petition by remonstrance, denying that the pro¬ 
posed highway was of public utility. John H. Thomas and Benjamin Devaney, 
two of the petitioners, appeared and filed in the circuit court a written dismissal 
of the cause as to themselves. Upon which Little again moved the court to dis¬ 
miss the petition, which motion the court overruled. He then filed an answer 
in abatement, stating all the facts upon which the several motions to dismiss 
were founded, and verified it by an affidavit. The court sustained a demurrer 
to the answer, which is assigned as error. By the averments in the answer it is 
shown that by the dismissals filed by a part of the petitioners, the number re¬ 
maining was reduced below twelve, and it is therefore argued by the appellant’s 
council, that the dismissal by a part of the petitioners ousted the circuit court 
of jurisdiction of the cause, and that the court erred in not sustaining the plea in 
abatement. 

The question presented is not free from doubt. It arises in a case belonging 
to a class in which the rules of practice are not well defined by statute, and 
seems to present a proper occasion for us to indicate what we regard as a proper 
rule of practice in such cases, in the hope that it may assist in furnishing a guide 
which will relieve the subject of some difficulty. 

The facts necessary to give the commissioners jurisdiction in the matter were: 
1 st. That the requisite notice of the petition had been given, 2 d. That the 
petition was signed by twelve freeholders of the county. 3 d. That six of the 
petitioners were of the immediate neighborhood of the proposed highway. 

The board had authority to do nothing until these facts were shown to exist. 
As to the notice, the statute certainly so provides; and as to the other jurisdic¬ 
tional facts, it may not be an unfair construction to hold that it requires them 
also to be shown, before any steps can be taken toward granting the prayer of 
the petition. The facts are required to exist, to give the commissioners jurisdic¬ 
tion. They cannot appoint viewers without entertaining such jurisdiction, and 
inasmuch as no adversary party is made in the petition, or provided for in the 
statute, whose duty it is to appear at the time it is filed, it would seem but rea¬ 
sonable that the commissioners should require of the petitioner proof of the 
facts necessary to give jurisdiction. The requirement of the statute, that notice 
of the petition should be given, it seems to us, implies that any freeholder of 
the county, or any person that may be interested in the subject-matter, may ap¬ 
pear at the time the petition is presented, and contest any such jurisdictional 
facts; otheiwise there would seem to be no object in requiring such notice. The 
time for this inquiry, then, precedes the appointment of viewers. It cannot be 
made afterward, and it must be made at that time, whether any one appears to 
16 


228 


THE BOARD OF COMMISSIONERS. 


raise the objection or not. If any one should appear at the time the petition is 
presented, and raise the objection, we think he might do so, and produce evi¬ 
dence touching the question of jurisdiction, without a plea in abatement. If the 
objection is not made at that time, the finding and judgment of the board upon 
that subject, entered of record, is in such a case conclusive upon it. It is not 
.doubted but that any petitioner may withdraw at any time before the question of 
.jurisdiction has been passed upon by the board. Twelve in all, six of whom 
.must he of the neighborhood, must ask for the road in order to put the proceed¬ 
ings, in. motion; but there would be great unfairness in permitting one of the 
twelve afterward to dismiss the case, and involve his fellow-petitioners in costs 
without their consent. It seems reasonable, however, that he should at any 
time be permitted to relieve himself of future liability, without injury to others, 
by dismissing the petition as to himself alone. This he may do, but it will 
not result in defeating the jurisdiction after it has once attached. Here the ap¬ 
pellant appeared before the board, at the time the first viewers filed their report 
in favor of the road, and, under the statute, made himself a party by remonstra¬ 
ting against the public utility of the proposed highway, and by subsequently 
claiming damages. These questions formed the issues presented by him. He 
was defeated before the commissioners, and appealed the case to the circuit 
.court, where the same issues were again presented for trial, and we think that he 
.cannot complain that the jurisdiction of the court was not defeated by the dis¬ 
missal of the petition by a part of the freeholders, as to themselves alone. It is 
objected that the finding of the jury is contrary to the evidence. The evidence 
is in the record. A large number of witnesses were examined, and their state¬ 
ments and opinions were very conflicting, both as to the public utility of the pro¬ 
posed highway, and on the question of damages. We cannot say that the evi¬ 
dence does not justify the finding, and therefore cannot disturb the judgment 
on that account. 

The judgment is affirmed with costs. 

In the case of Crossly and others vs. O’Brien and others, 24 Ind. 325 , appeal 
from the Hamilton Common Pleas Court, Frazer, J., says: 

This was a petition for the establishment of a public highway. Upon remon¬ 
strance, the board of commissioners appointed reviewers, who reported that the 
proposed road would not be of public utility, and, also, assessed the damages of 
John Crossley at $ 15 , of Gustavus H. Voss at $ 5 , and the P. & I. R. R. Co. at 
$ 10 ; and thereupon the board dismissed the petition, unless the petitioners 
would open and maintain the road at their own expense. The petitioners ap¬ 
pealed to the court of common pleas, where the questions of the public utility 
of the road, and of the damages of the remonstrants, were submitted to a jury. 
The verdict was that the proposed road would be of public utility; that Cross- 
ley’s damages would be $ 20 , and that neither Voss nor the railroad company 
would be entitled to any damages. Over a motion for a new trial by the 
remonstrants, there was judgment upon the verdict, and the remonstrants ap- 
ealed to this court. 

The judgment must be reversed. 

The verdict, upon the subject of damages especially, seems to have been ren 
dered in utter defiance of all the evidence, and the court below should not have 
hesitated an instant to set it aside. Upon that subject there was no real conflict. 


HIGHWAYS. 


529 


and the evidence itself appears on the face so reasonable and obviously true that 
we cannot doubt our duty. As to Voss, the evidence was that between four and 
five acres of his land, renting for $4 per acre, would be occupied, and two 
thousand rails would be required to fence it. There was no evidence whatever 
that the road would benefit him. As to the railroad company, the proposed 
road is, for a distance of about two miles and three-quarters, to run ten feet 
from the east rail of the railroad, except where pits and grades will prevent, 
thus occupying thirty feet of their right of way, the use for a part of which is 
absolutely necessary for railroad purposes. In many places the ditch would oc¬ 
cupy all the space between the railroad and the proposed highway, rendering it 
impossible to fence for the protection of the railroad track. The property and 
trains of the company would thus be constantly endangered, and the use of its 
railroad be dangerous to passengers upon it. There is nothing whatever to indi¬ 
cate that the railroad company would derive any advantage from the proposed 
highway, nor is it easy to conceive how that would be possible. In such a state 
of facts a verdict that the company would sustain no damage whatever, is 
surely not to be permitted to stand, unless the court is in all cases wholly to re¬ 
fuse to exercise that authority over the verdict which it is as much its duty, in 
in a clear case, to exercise, as it is to try the case at all. 

Upon the question of the utility of the proposed road, it appeared that it 
would be dangerous to the public to use it so near to the railroad; that there 
were other routes equally eligible in other respects, free from that objection, and 
which would not interfere with the corporate franchises of the railroad company. 
Now in determining the question of utility, it is, of course, necessaiy and proper 
to consider the wants of a single neighborhood. But we must also look beyond 
that. It would be absurd to shut our eyes to the interests of the whole commu¬ 
nity outside of the particular neighborhood which needs the sought-for highway, 
and it would be impossible to say that that was a highway of public utility 
which would be of great inconvenience to the people of a small given territory, 
but the establishment of which would render unfit for use another highway of 
vastly greater importance, or put in serious danger the many thousands of 
people having occasion to use that other more important way. In a legal sense, 
this railroad is such a public highway, though owned by and operated for the 
profit of a private corporation. It may be true that it is subject to the great 
sovereign right of eminent domain, and that it might be taken from end to end 
for a common public road, if it can be supposed to be possible that the public 
would, on the whole, be benefited thereby. But, in the veiy nature of things, 
that state of facts would scarcely exist, unless no other practicable route for such 
common road could be had. And so, under like necessity, and where the inter¬ 
ests of the great public required it, it may be that the franchises of the corpora¬ 
tion, to a greater or less extent, might be taken for public use, and appropriated 
to a common highway. But in either case, the property, like that of a citizen, 
must be paid for. The Constitution of the State requires it; and neither courts 
nor juries have any power or right, in law of morals, to say otherwise. And 
then the amount of compensation becomes, in the very nature of things, an ele¬ 
ment to be considered in determining the question of public utility. 

Will it cost the public more than it will be worth? In the case in hand, the 
evidence discloses no fact tending to show any necessity whatever for interfer- 


230 


THE BOARD OF COMMISSIONERS. 


ence with the franchises of the corporation. So far as there is any evidence 
upon that subject, (and the onus was upon the petitioners,) it tends to show that 
another and a better location for the road could be had, which would equally 
well accommodate the neighborhood. 

But it is needless to pursue the subject. Enough has been said to show that, 
in view of the well-settled doctrine of the law touching the matter, the finding 
of the jury upon the question of public utility was clearly against the evidence. 
Whether the existing law authorizes, under any circumstances, the taking of any 
part of the property of the P. & I. R. R. Co. for a common highway, it is not 
necessary now to determine. Assuming that it may be taken, (an opinion to 
which we incline,) we have indicated, in general terms, the circumstances which 
would authorize it, and that they necessarily enter into the question of the 
utility of the proposed highway. 

A number of other questions are agitated in the briefs, which may he shortly 
disposed of. 

We are of the opinion that the petitioners had a right, under the statute, to 
appeal from the action of the board of commissioners, as. they did. i G. & H., 
2 26, p. 364. 

The petition represented that the lands of “- Weaver,” and others 

named, would be affected by the proposed road. Inasmuch as it appears in the 
record elsewhere that the lands of three Weavers, Michael, Benjamin and Peter, 
all of whom are petitioners, would be affected, we think the defect in the orig¬ 
inal petition is cured; and, at any rate, objections of that character, if not made 
before the appointment of viewers, ought not, we think, to be entertained after¬ 
ward, especially if made by other parties. 

Section 16 of the highway act, 1 G. & H., 363, which prohibits the viewers 
from locating a highway through an inclosure without the owner’s consent, un¬ 
less a good way cannot otherwise be had, is intended for the government of the 
viewers, and if they find such inclosure upon the route petitioned for, the owner 
of which does not so consent, and they find, upon examination, that a good 
route for a road can be otherwise had, the statute makes such facts an absolute 
bar to the establishment of a highway there, and the viewers are not possessed 
of a roving commission which gives them authority to locate a road in any place 
materially, if at all, different from that mentioned in the petition. The statute 
which requires them to locate it on the best ground ought not to be held to au¬ 
thorize them essentially to depart from a definite route petitioned for. 

When the report is silent as to the interference of any such inclosure, it would 
be in accordance with the rule applicable in other cases, to assume that there 
was no such inclosure, or that the owner had given the requisite consent. When 
the case is appealed and tried by a jury a general verdict for the petitioners 
ought to be regarded as covering that question. 

Where, as in this case, the question of utility and damages only are put to the 
jury, and the remonstrants do not ask that the question concerning inclosures 
shall be also submitted, we think it too late for them to raise a question about 
it afterward. 

The statute is silent as to the practice, and that which prevails in ordinary 
suits is not exactly applicable to the subj ect. But there must be a practice, and 
the sooner it is settled the better. It approaches very near to legislation to do 



HIGHWAYS. 


231 


it, and yet we cannot avoid it. That which we Tiave indicated seems simply 
furnishing an easy mode of reaching the merits, and giving little opportunity to 
defeat the establishment of highways, unless they ought to be defeated. 

We regard the course required by the statute, where inclosures interferes, as a 
thing not necessaiy to give jurisdiction, but a proceeding in the matter after the 
jurisdiction has been obtained. All the facts necessary to give jurisdiction in a 
road case must affirmatively appear by the record, else the jurisdiction will not 
be deemed to have been acquired. 

But, as to proceedings in the cause after jurisdiction to proceed has been ob¬ 
tained, the same- presumption in support of their regularity will be indulged as 
in ordinary cases with courts of general jurisdiction. This is a well established 
principle, and the conflict in the cases upon the subject, which must have per¬ 
plexed every lawyer who has had occasion to examine them, has resulted from 
losing sight of the distinction between the facts required to entitle the tribunal 
to take jurisdiction, and those occurring afterward in the exercise of jurisdic¬ 
tion. 

The judgment is reversed, with costs, and the cause .remanded, for anew trial. 

In the'case of Wilson and others v. Whitsell and others, 24 Ind. 306, appeal 
from the Howard Circuit Court, Elliott, C. J., says: 

The appellants filed a petition before the Board of County Commissioners of 
Tipton county, at the December term, i860, praying that the road leading from 
Tipton to Windfall, in Tipton county, and thence to Jerome, in Howard county, 
be so changed as to run as follows: " Beginning at the point where said road 
crosses the Peru and Indianapolis Railroad, thence in an easterly direction par¬ 
allel with the southern boundary of the Indian Reserve, to land owned by 
Evans & Bro. and Joseph W. Wilson, to said Tipton, Windfall and Jerome 
road.” Viewers were duly appointed to examine the proposed change, and at 
the March term, 1861, reported to the board that they had viewed the proposed 
change, and that it was of public utility, and recommended that it be made. 

Whitsell and twenty-nine others, “ citizens of Cicero township, in said county,” 
thereupon filed their written remonstrance protesting against the proposed change 
as not being of public utility. 

Upon the filing of -the remonstrance the commissioners, under the provisions 
of the statute, appointed three other persons as viewers to review and report 
upon the public' utility of the proposed change. 

At the June term, 1861, the last named viewers reported that they had care¬ 
fully reviewed the proposed change in said highway, and believed the same to 
he of public utility, and recommended that the same be located and established 
as described in the petition and notice to viewers, “ provided the petitioners shall 
first open and put said new road in as good condition as the old one at their 
own expense.” But on failure of the petitioners to comply with the above con- 
diton, then we report against said change. 

The commissioners thereupon entered the following-order in reference to said 
report, viz: “Said report publicly read, and no person objecting to, it is there¬ 
fore ordered that said report be recorded, and that the road be declared a public 
highway, to the width of forty feet, upon the conditions named in said report 
and upon no other, to-wit, that the said petitioners open and put said road in as 
good xepair, as to clearing, bridging, grading and -ditching as the old road; at 


232 


THE BOARD OP COMMISSIONERS. 


which time, and not before, the said new route will be established and located 
as a public highway, and thereafter kept in repair according to law.” 

At the September term, 1863, of the Board of Commissioners, Joseph W. 
Wilson, one of the original petitioners, filed a petition stating that the new road 
was fully completed according to the conditions in the previous order of the 
board, and praying that it be received, and for an order vacating so much of the 
old road as was changed by said order. 

Whereupon, as we are informed by the record, “ the board proceeded to said 
road and made a personal inspection thereof, and, after a careful examination of 
the same, agreed to review it in compliance with said condition,” and then and 
there declared the same to be a public highway, “ whenever it shall be opened 
the width required, and the said road is hereby ordered to be kept in repair as 
such from henceforward, and that the old road between the commencement and 
the termination of the change be vacated.” 

The remonstrants then moved the board to set aside the original petition, the 
report of the viewers and the order of the board establishing the change and 
vacating that part of the old road; but the motion was overruled, and they ap¬ 
pealed to the Tipton Circuit Court. 

The cause was afterward moved, by change of venue, to the Howard Circuit 
Court. In the circuit court the appellants moved to strike out the remonstrance, 
for the reason “ that none of the persons signing the same resided along the pro¬ 
posed change, or the highway to be vacated.” The motion was supported by 
affidavit, but the court overruled it. They then moved the court to dismiss the 
appeal, on the ground that it was not taken within thirty days next after the de¬ 
termination of said board locating and establishing the proposed change, but the 
court overruled the motion. 

The cause was tried by a jury, who returned a verdict that the proposed 
change was not of public utility. Motion for a new trial overruled, aud judg¬ 
ment against appellants for costs. 

The errors assigned are: 

1. The court erred in overruling the appellant’s motion to strike out the 
original remonstrance. 

2. The court erred in overruling the appellant’s motion to dismiss the appeal. 

3. The verdict of the jury is contrary to law, as it is notupon the issue in the 
cause. 

We will examine them in the order in which they are presented. 

The first question is, did the court err in refusing to strike out the original re¬ 
monstrance, on the alleged ground that none of the persons signing it “ resided 
along the proposed change, or the highway to be vacated?” The statute upon 
which the remonstrance was filed provides that “ if any one or more freeholders, 
residing in such county, along such proposed highway, vacation or change, shall 
object to the same at any time before final action thereon* as not being of public 
utility, other viewers may be appointed,” &c. The remonstrance describes the 
persons signing it as “citizens of Cicero township in said county.” This 
description does not conform to the language of the statute, and yet they may be 
freeholders, and some one or more of them reside along the proposed change or 
vacation, within the proper meaning of the statute, which we do not construe to 
mean that to enable a freeholder to object he must reside immediately on the 


HIGHWAYS. 


233 


line of the proposed change or road to be vacated, but in its vicinity, or within 
such reasonable distance thereof that he may be affected by the change or va¬ 
cation in his convenience of travel or otherwise. But the motion was properly 
overruled, for the reason that the objection, if otherwise properly made, came 
too late. No objection was interposed at the time the remonstrance was filed 
either by the appellants or the board of commissioners. 

The latter recognized their right to object to the proposed change, and upon 
the filing of the remonstrance, appointed viewers to review it; upon their re¬ 
port, and the subsequent proceedings of the board thereon, the final order was 
made establishing the change, and it was too late to deny their right to make the 
objection on appeal in the circuit court. [See Little vs. Thompson et al ., ante 
p. 146.] 

But it is urged that the court erred in overruling the appellant’s motion to dis¬ 
miss the appeal. We think otherwise. 

It is admitted that the appeal was taken in less than thirty days after the order 
of the board, at the September term, 1863, establishing the change, declaring 
it a public highway, and vacating that part of the old road. 

But the appellants insist that the report of the reviewers and the order of the 
board, at the June term, 1861, established the proposed change, and was final. 

In this, we think, they are in error. That report and the order of the board 
upon it, we apprehend, are without precedent, and certainly without authority; 
but it was not final, nor does it purport to be so. It was the duty of the view¬ 
ers to determine and report whether the proposed change was, or was not of 
public utility. 

They do neither, but make a conditional report, that if the petitioners will 
open the new road, then they say the change is of public utility, but if they re¬ 
fuse to do so, then their report is that it is not of public utility. They were not 
authorized to annex such a condition, aad the petitioners were clearly not bound 
to comply with it, and unless they did comply, the report stood against the pub¬ 
lic utility of the change. 

The change was not, therefore, authorized or established at that time. Nor, 
as we have already said, does the order of the board, made at that time, purport 
to establish the change. The language is that, when the new route is opened, 
and made as good as the old one, “ the said new route will be established and 
located as a public highway.” It is also evident that it was so understood, both 
by the appellants and the commissioners, and hence the petition at the Septem¬ 
ber term, 1863, to have the new road received and established, and the old one 
vacated, and the order of the board, after a careful personal inspection, in con¬ 
formity with the petition. The only remaining error assigned is, that the ver¬ 
dict of the jury is not upon the issue in the cause. 

The only issue in the cause was made by the remonstrance,, denying that the 
proposed change was of public utility. 

That was the issue properly submitted to, and passed upon by the jury. There 
is nothing in the objection. 

The judgment is affirmed, with costs. 

In the case of Smith and others vs. Alexander and others, 24 Ind. 454, appeal 
from the Marion circuit court, Elliott, C. J., says: 

William Alexander and twenty-nine others, citizens and freeholders of Marion 


234 


THE BOARD OF COMMISSIONERS. 


county, filed a petition before the board of county commissioners of said county, 
for the location of a public highway. Proof of notice of the petition by publi¬ 
cation in a weekly newspaper published in the county, was made, and also that 
at least six of the petitioners were freeholders who resided in the immediate 
neighborhood of the road petitioned for. At the time the petition was filed, 
John W. Hamilton appeared as the attorney of Henry Smith and others, and 
filed written objections to the reception of the petition, on the grounds that a 
previous application had been made for the same proposed highway, and de¬ 
feated, and that the petition is not signed by any of the owners of the lands on 
the line of the proposed highway. The objections were overruled, and viewers 
were appointed, who reported in favor of the proposed highway, and that it 
would be of “ general utility.” 

Smith and others, over whose land the proposed highway, if located, would 
pass, then appeared and filed their written objections, or remonstrance, against 
the same, on account of the damages it would cause them, the amount of which 
to each is stated. Reviewers were thereupon appointed, and a final report was 
made, finding the proposed highway to be of public utility, and assessing dam¬ 
ages in favor of a part of the objectors, and finding that the others would mot be 
injured by the location of the highway. 

A final order was thereupon made, locating and establishing the highway, and 
ordering it to be opened thirty feet in width. 

The remonstrants thereupon appealed to the circuit court. David G. Cole, 
over whose lands the highway was proposed to be located, appeared in the cir¬ 
cuit court, and on his petition being filed, claiming damages, was permitted to 
join in the remonstrance. 

The case was then submitted to a jury, who found that the present highway 
was of public utility, and assessed damages in favor of a part of the claimants. 

Motions for a new trial and in arrest of judgment were made and overruled, 
and a final judgment rendered, locating the highway. The remonstrants appeal. 

The first objection presented, upon which a reversal is claimed, is that the 
description of the highway and its location,, both in the reports of the viewers 
and the final order of the court, is defective for want of sufficient certainty. 

The description as given in the petition is followed in all the subsequent pro¬ 
ceedings, and is as follows : il Beginning at the line dividing sections eight and 
nine, in township fifteen, north of range four east, at a point where the Indiana¬ 
polis and Bean Creek gravel road crosses said line, thence running north on said 
line,” &c., “ until said line will intersect the Indianapolis and Pendleton gravel 
road; varying, however, from said line at the crossing of the Central Railway 
track, far enough to the east to avoid the culvert under said railway track, and 
to place said highway upon good ground for a road. Said road will be about 
three miles in length.” 

The statute requires the viewers, in their report, to give a full description of 
the location by routes and bounds, and by its course and distance. This road 
being located on a section line, already definitely ascertained and marked, no 
further marking was necessary, even to a strict compliance with the statute, ex¬ 
cept, perhaps, at the point where it varies from that line far enough to avoid the 
culvert under the Central Railway track. The course and distance are stated. 

We think it but reasonable to infer that the viewers marked the location, at 


HIGHWAYS. 


235 


the point of deviation from the section line, though their report is silent upon 
that subject. At any rate, we do not think the location is void for uncertainty. 
But this question is not properly before us, as it is raised for the first time in the 
appellants’ brief. It is not assigned as a cause for a new trial, nor in arrest of 
judgment, nor is it assigned as error. 

The only remaining objection is, that the circuit court erred in refusing to dis¬ 
miss the proceedings on the motion of Cole, for want of sufficient notice of the 
filing of the original petition before the board of commissioners. We do not 
decide that the notice was sufficient, nor discuss the question at all, for the reason 
that the objection, if otherwise valid, was not made at the proper time. The 
record shows that at the time the petition was presented, Smith, and others of 
the appellants, appeared and objected to the proceedings on other grounds, but 
made no objection to the sufficiency of the notice; and when the first viewers 
reported in favor of the highway, all the remonstrants, except Cole, appeared 
and filed their claims for damages. 

They did not object to the sufficiency of the notice, nor that the proposed 
highway was not of public utility; they simply claimed damages because of its 
location on their lands. We deem it proper here to say that under the statute, 
it is clear that the reviewers had nothing to do with the question of the public 
utility of the highway; that fact was, in effect, admitted by the remonstrants 
failing to deny it, and claiming damages. The only question, therefore, sub¬ 
mitted to the reviewers, was the amount of damages, if any, the remonstrants 
would sustain by reason of the location of the road through their lands. 

This, in effect, was the issue, and was the only question to be tried, on appeal, 
in the circuit court. The remonstrants might also have put in issue the public 
utility of the highway, but they did not, and it was, therefore, admitted. Cole 
was not a party to the remonstrance when it was filed, but was permitted to be¬ 
come a party to it in the circuit court, and to file his claim for damages, which 
he did. He then occupied the same relation to the proceedings that the other 
claimants of damages did, and could not then object to the notice. See Dazzy 
et al. vs. Coats et al., 19 Ind. 259. 

The judgment below is affirmed. 

In the case of Hays and others v. Campbell and others, 17 Ind., 431, appeal 
from the Daviess circuit court, Hanna, J. says: 

The appellants filed a petition before the board of county commissioners, ask¬ 
ing that a county road be laid out and opened, “ Commencing at the State road 
leading from Washington, Daviess county, Ind., to Bedford, Lawrence county, 
Ind., at sections 16 and 17, and running on the line between Barr and Washing¬ 
ton townships, due south, or as nearly so cs it can run to get a good road, to in¬ 
tersect the Alfordsville road.” No remonstrance being filed, viewers were ap¬ 
pointed, who reported that they had viewed the road “ Commencing at sections 
16 and 17, on,” &c., and running on the line between Barr and Washington 
townships, due south to the line of the Cincinnati & St. Louis Railroad, thence 
west thirteen rods, thence south eighty rods, thence east thirteen rods, thence 
south to the south side of Aikman’s Creek, thence south-west thirty rods to the 
Alfordsville road; and that the same would be of public utility. A remon¬ 
strance was then filed by the appellees, as the record states, demanding their 


236 


THE BOARD OF COMMISSIONERS. 


damages occasioned by the location, See., of said road. Viewers were appointed, 
who reported that said remonstrants would sustain no damages. 

The road was ordered to be opened. Appellees appealed to the circuit court, 
upon a bond signed by the surety only, and there moved to dismiss the proceed¬ 
ings for want of a sufficient petition and report of viewers. 

Appellants in this court moved there to dismiss the appeal for want of a suffi¬ 
cient bond, and for want of an affidavit of interest in appellants; and also 
moved to strike out the names of the signers of the original petition as parties, 
they and the board of county commissioners being named as defendants in the 
appeal. 

The court overruled all the motions of the present appellants, directed the ap¬ 
pellants in that court to file a new bond, and then dismissed the whole proceed¬ 
ings at the costs of the petitioners; and refused judgment for said costs against 
the county board. 

It is insisted that where there is no remonstrance filed to the original applica¬ 
tion for the appointment of viewers, &c., those persons who may come in and 
merely object to an order authorizing the opening of said road until their claim 
for damages is settled, cannot, on appeal, object to or raise the question as to the 
sufficiency of the original petition. That all they can do is to ask the court to 
determine in a proper manner the amount of damages to which they are entitled. 

To this it is answered that, even if this position is true as to proceedings le¬ 
gally conducted, it cannot apply to those where the petition, &c., is so vague as 
to give the board of commissioners no jurisdiction; and that such is the charac¬ 
ter of this petition; that it does not, conformably to the statutory requirement, 
name the beginning, route and terminus of the intended road, and the persons 
through whose hands it will pass. 

First. Could the court, under the circumstances, examine the sufficiency of 
the petition ? We are of opinion that if the petition was so insufficient as to 
form no basis for the action of the board, that an objection thereto would be fa¬ 
tal at any stage of the proceedings. Whether it was thus invalid, depends upon 
the construction to be given to our statutes upon the subject of highways. I R. 
S., pp. 307-316. The first fourteen sections of said act are devoted to the mode 
of establishing, &c., highways that run through more than one county, and re¬ 
quire that a petition for such road shall contain a description of the “ beginning, 
course, and termination of the same, together with the names of the owners, or 
occupants, or agents of the lands through which the same may pass.” The next 
twelve sections point out the mode of establishing, &c., roads running through 
but one county, but through more than one township. 

These sections merely provide that a petition shall be presented to the board 
of commissioners of the county, &c., but do not specify what such petition shall 
contain. It is provided, though, that the report of the reviewers shall contain a 
full description, &c., of the road by “routes and bounds, courses and distances;” 
but even that report is not required to name the proprietors, &c., of lands 
through which such road is located. 

Should these statutes be so construed as to require the petition, in the one 
case, to contain all that is required in the other? The reason, it appears to us, 
is as strong for requiring the petition to name the persons to be effected by such 
highway, where it passes through but one county, as where it passes through 


HIGHWAYS. 


237 


more. We are, therefore, of the opinion that such should he the character of 
the petition. In the absence of this essential requisite of the petition in the 
case at bar, we are of opinion that the county board were not authorized to act 
upon the same. 

One of the very objects to be accomplished by naming the proprietors of the 
lands was defeated, namely, that they should, by the notice to be given, based 
upon such petition, be prepared to remonstrate, if deemed expedient. It is now 
urged that because such remonstrance was not filed in the first instance, that the 
parties are precluded from taking advantage of defects in such original applica¬ 
tion. 

As the whole proceeding had been thus built up on an insufficient and invalid 
foundation, the court did right to dismiss it, because at some future stage of its 
progress it might, perhaps, have involved persons in serious litigation in attempt¬ 
ing to open and establish said road. 

Per Curiam .—The judgment is affirmed, with costs. 

v In the case of Hughes v. Sellers and others, 34 Ind., 337, appealed from the 
Hendricks Circuit Court, Downey, J., says: 

The appellees filed a petition before the Board of Commissioners as follows: 

STATE OF INDIANA, \ 

County of Hendricks. / * 

To the Board of Commissioners of Hendricks County: 

The undersigned, residents of Hendricks county and freeholders therein, re¬ 
spectfully petition the honorable Board of Commissioners aforesaid for the loca¬ 
tion of a public highway in said county as follows: Commencing at the 
northeast corner of B. N. Moberly’s land in section 30, township 16, north of 
range 1 east; thence running north between the lands of James Smith on the 
west, and the lands of Hiram Mitchell and A. F. Smith and Richard B. Jones 
on the east, to the northeast comer of James Smith’s land; thence west eleven 
rods; thence north between the lands of E. D. Sellers and the heirs of Jeremiah 
Depew to the northeast corner of said heirs’s land; thence west two rods; 
thence north between the land of Henry Hughes’ heirs to intersect the Danville 
and Brownsburg road. Said road being a public necessity and of public utility, 
as your petitioners believe. (Signed by twelve persons.) 

Upon proof of notice, viewers were appointed, who subsequently reported 
that they had viewed the said described highway as follows, to wit: Giving the 
same description as the petition, “and are of the opinion that the location of 
said described highway would be of public utility.” 

There was a motion made by the appellant to set aside this report, which was 
overruled. Upon remonstrance by her, other viewers were appointed, who re¬ 
ported in favor of the utility of the highway, and that they had laid it out thirty 
feet wide , describing it as in the petition. 

The appellant then remonstrated, claiming damages, and reviewers were ap¬ 
pointed, fixing the amount of her damages. The damages having been paid to 
the county treasurer, the Commissioners ordered the highway opened. 

The appellant appealed to the circuit court, where she moved to dismiss the 
petition, because it did not sufficiently fix the beginning and termination of the 
proposed highway. This was overruled. The appellant then presented the 


238 


THE BOAHD OF COMMISSIONERS. 


same objection to the first report that was made before the commissioners, for 
the reasons, among others, that the said viewers were not sworn, and did not lay 
out and mark the proposed highway; but the court refused to entertain and con¬ 
sider the said objection. The court, having heard the evidence, found that the 
proposed highway sought to be established and located by the petitioners would 
be of public utility, and re-assessed the damages, and found that they had been 
deposited with the treasurer for the defendant. 

There was a motion for a new trial, for the reasons, first, that the court im¬ 
properly overruled the motion of the defendant to dismiss the plaintiffs’ petition 
for a highway; second, the court improperly refused to entertain and consider 
the original objection in writing made by the defendant to the board of com¬ 
missioners receiving and acting on the report of the first set of viewers, and to 
strike out said report. 

This motion was overruled. The defendant then moved in arrest of judgment, 
because, first, the petition for the highway was not sufficient in law to form the 
basis of action of the board of commissioners; second, .because the petition 
was not sufficient in law for that court to render a valid judgment on establish¬ 
ing and creating a public highway; third, because the report of the first viewers 
was not sufficient in law on which to render a valid judgment establishing a 
highway on the route set forth in said report, on which route the court had 
found a highway would be of public utility. 

This motion was also overruled by the court, and judgment was rendered that 
the highway be laid out thirty feet wide, on the route as described in the peti¬ 
tion, &c. To all these rulings of the court exceptions were duly taken by the 
defendant. 

The errors assigned are: ist, the refusal of a new trial; 2d, refusing to arrest 
the judgment; 3d, rendering judgment against the defendant without appointing 
a guardian ad litem for her. 

The first question presented, in the natural order, for our consideration, is as 
to the sufficiency of the petition, as that is at the foundation of the proceeding. 
The termini of the proposed highway are not very well fixed; but there is, we 
think, another and, perhaps, more serious objection to the petition, which is that 
it does not give the names of the owners, occupants, or agents of the lands 
through which the highway passes, as required by I G. & H., p. 359, § 1. 

Literally construed, the petition proposes to do an impossible thing, that is, 
lay out a highway between the lands of two adjoining proprietors. We must un¬ 
derstand it as proposing to run the highway through the lands of the persons 
named, but on the line dividing their lands, so that, according to the statute, each 
shall give half of the road. 1 G. & H., p. 363, § 16. It should then have given 
the names of these owners; and it is not giving the names of owners to say 
that they are the heirs of a designated person, as is done with two or more of 
the tracts of land over which this highway is to run. 

This objection was not waived because it was not made before the board of com¬ 
missioners. “ We are of opinion that if the petition was so insufficient as to 
form no basis for the action of the board, an objection thereto would be fatal at 
any stage of the proceedings.” Hays v. Campbell, 17 Ind. 430. We know of 
no other standard by which to measure the sufficiency of the petition than that 


HIGHWAYS. 239 

tvhich is to be found in the statute providing what it shall contain. I G. & II., 
p. 359, § I; Hays v. Campbell, supra. 

Though it may be unnecessary, we will say that we think the report of the 
first viewers was defective and insufficient, because it did not show that they had 
laid out and marked the highway, nor that they had laid it out so that each ad¬ 
joining owner should give half of the road, as required by i G. &H., p.363, $ 16. 

We also think that the second viewers appointed had no authority to lay out 
and mark the highway. Their duty was simply to examine the proposed high¬ 
way and report whether or not it would be of public utility. 1 G. & H., p. 364, $ 23. 

The highway having never been properly laid out and marked by the viewers, 
we do not see how the circuit court could adjudge it to be opened and estab¬ 
lished as such. 

There is nothing in the last error assigned. The appellant was represented by 
her guardian before the commissioners and in the circuit court. 

It is a part of the duties of the guardian to appear and defend, or cause to be de¬ 
fended, all suits against his ward. 2 G. & H. 567, sec. 9, Fifth Division. Where 
the guardian appears, it is necessary for the court to appoint a guardian ad litem. 

The judgment is reversed, with costs, and the cause remanded, with directions 
to the circuit court to sustain the motion in arrest of judgment. 

In the case of Sidener v. Essex et al., 22 Ind. 201, appeal from the Bartholo¬ 
mew Circuit Court, Davison, J., says: 

Thomas Essex and others, to the number of eighteen, at the September term, 
1859, filed their petition before the Board of Commissioners of Bartholomew 
county for the location of a public highway. The petition describes the pro¬ 
posed highway, names the owners of the land through which it will run, and 
prays the appointment of viewers, &c. The board, in accordance with the 
prayer, appointed three viewers, who, at the March term, i860, reported that 
they had viewed, laid out, and marked the proposed highway, and that the 
same, when opened, would be of public utility. 

At the last named term, Joseph D. Sidener remonstrated against the opening 
of the highway, alleging in his remonstrance that the same, if opened, will run 
through his land, will damage him five hundred dollars, and will not be of pub¬ 
lic utility, and therefore he prays the appointment of reviewers. 

And thereupon the board appointed three reviewers, who, at the September 
term, i860, reported that the contemplated highway, if established, will be of 
public utility, and that Sidener, by reason of its passage through his land, will 
sustain damages to the amount of twenty-five dollars. 

Upon the filing of this report, the board made an order directing the proposed 
highway to be opened to the width of thirty feet, and be kept in repair as other 
roads; provided the petitioners herein shall pay Sidener, the remonstrant, 
twenty-five dollars, the damages assessed in his favor, &c. From this decision 
Sidener appealed. In the circuit court, the cause having been referred to a jury, 
the parties, by agreement in writing, submitted for the consideration of the juiy 
the following: “1. Would the proposed highway be of public utility ? 2. If 

of public utility, would it be of any damage to Sidener, and if so, what amount ?” 

To these questions the jury responded, that “ the proposed highway would be 
of public utility,” and that Sidener would, if the road was opened, be damaged 
twenty-five dollars. The court, having a new trial, ordered that the sum of 


240 


THE BOARD OF COMMISSIONERS. 


twenty-five dollars, found in favor of Sidener as damages, be paid out of the 
county treasury, and that the highway, as described in the petition, be opened 
and kept in repair as a public highway, &c. 

The errors assigned are in substance as follows: 

1. The court erred in its refusal of evidence offered by defendant. 

2. The verdict is unsustained by the evidence. 

3. The width of the road is not specified in the order of the court. 

The plaintiff, upon the trial, offered to prove that the original petition was not 
signed by twelve freeholders; but the court refused the offer, and he excepted. 

There is nothing in this exception. As we have seen, the only question pre¬ 
sented by the remonstrance and submitted to the jury, related to the utility of the 
road and the question of damages. It follows, then, the proposed evidence was net 
pertinent to the issues, and, therefore, inadmissible. Kemp v. Smith, 7 Ind. 471. 

The plaintiff, in his own behalf, testified that the contemplated highway would 
run through his farm from east to west, on the line between two sections, and 
through a lane which is closed up at each end; that the portion of his farm on 
the north side of the lane was fenced off into fields running north and south; 
that in the north-west corner of the farm there is a spring of unfailing water for 
stock, and that he had his fields so arranged that he could turn his stock from 
any field into the lane, from whence the stock could go to the water; that on the 
south side of the farm there is a small branch, but it is always dry during the dry 
seasons of the year, and he watered his stock on that part of the farm by turning 
them into the lane; that there was no stock water on the farm other than the 
above; and that he had arranged his farm in part for a stock farm, and dealt 
considerably in stock. 

Having thus testified, the plaintiff proposed to prove the difference between 
the market value of the farm, if any, as a stock farm, in its present condition, 
and what it would be with the proposed highway running through it. The 
court refused the evidence, but allowed “ the plaintiff to prove the difference in 
the market value of the farm as it now is, and what it would be if the highway 
was opened.” 

We perceive nothing in these rulings of which the plaintiff has a right to com¬ 
plain. The market value of the farm was its real value; and if, by reason of 
the location of the highway, that value would be diminished, the amount of such 
diminution would be the true measure of damages. But the final order of the 
court is plainly defective, because it fails to specify the width of the road. Of 
this, however, the appellant has no right to complain. The defectiveness of the 
order, in that respect, in no way conflicted with his rights; nor does it appear 
that such defect was pointed out to the lower court. 

In looking into the whole record, we perceive no error which authorizes a 
reversal; the judgment will therefore be affirmed, with directions to the circuit 
court to correct its order, by specifying the width of the road. 

Per Curium .—The judgment is affirmed accordingly, and remanded for the 
correction of said order, with costs. 

12. By statute, user of a highway for twenty years is an absolute bar; but a 
highway may be established by user for a shorter period. Hays vs. The State, 
8 Ind. 425. See The State vs. Hill, 10 Ind. 219. See Easement. 

13. A road which has been used by the public uninterruptedly for twenty 


HIGHWAYS. 


241 


years, becomes a puhlic highway; and its width, as used at the end of that 
time, is the established width of the road. Hart vs. Trustees, &c., i5 Ind. 226; 
Epler vs. Newman, 5 Ind. 559. 

17. A petition, under the act of 1849, to the board of commissioners for the 
location of a highway, stated the names of the owners of the lands through 
which the contemplated highway would pass, but did not state who occupied 
them. Held , that the omission was an immaterial one. Held\ also, that it could 
not affect the jurisdiction of the board. Mulhollin vs. Thomas, 7 Ind. 165. 

18. The general highway act of 1849 g ave to the boards of commissioners 
jurisdiction of the opening of highways, and also gave an appeal from their 
decisions to the circuit court. Mulhollin vs. Thomas, 7 Ind. 165. 

19. Where the proceedings for opening a highway show the terminus there¬ 
of, and that its course is to follow that of the Ohio river: Held, that the begin¬ 
ning, course, and termination of the road are sufficiently shown within the inten¬ 
tion of section 2, p. 446, R. S. 1831. Hays vs. The State, 8 Ind. 425. 

20. Order of Location .—Where a road was, by order of the proper authority, 
located on a line between two farms, so far as such order could make a location, 
but was, in point of fact, opened, marked, and used for twenty-seven years on 
one side of that line, wholly on the land of one of the proprietors: Held , in a pros¬ 
ecution for malicious trespass, that the original order would not, at that length 
of time after it was made, confer upon the supervision the authority, under our 
statutes, to open the road upon the line. Lemasters vs. The State, Ind. 391. 

21. Under the statute of 1839 (Act, p. 105, $ 30), an order by a county board 
authorizing the opening of a private way, without defining its width, is void on 
its face. Barnard vs. Hayworth, 9 Ind. 103; Coulton vs. The State, 9 Blackf. 
208; White vs. Conover, 5 Ind. 462.. 

22. On the hearing of an application to change a county road, there must be 
proof that legal notice of it had been given, or the application may be dismissed. 
Peabody vs. Sweet, 3 Ind. 514. 

23. Unless such proof be waived by the party objecting. Mulhollin vs. 
Thomas, 7 Ind. 165. 

24. Viewers. —The highway act of 1849 required that the persons to be ap¬ 
pointed as viewers for a proposed highway, should-be disinterested freeholders. 
Held, that a person who had signed a petition for the road, was not a disinter¬ 
ested freeholder, and that in a suit for obstructing the road, an objebtion that one 
of the viewers was a petitioner, was fatal. Epler vs. Newman, 5 Ind. 459, 

25. A report made by viewers of a proposed highway, who own land along 
the same, is a nullity. Daggy vs. Green, 12 Ind. 303. 

26. A change in a part of the Terre Haute State road was made and marked 
by a commissioner, under the act of 1833. Held, that the part of the road as 
thus changed might be opened, though the commissioner’s report had not been 
filed in the clerk’s office, as the act requires. White vs. Morris, 4 Blackf. 2. 

27. In opening a road established by the county commissioners, the supervi¬ 
sor cannot deviate from the course of the road so established. Phipps vs. The 
State, 7 Blackf. 512. 

28. A county board, in establishing a way, must follow the directions of the 
statute. Barnard vs. Haworth, 9 Ind. 103. 

29. Vacation. Section 54, p. 332, R. S., 1843, which provided that every 


242 


TIIE BOARD OF COMMISSIONERS. 


highway already laid out, or which might thereafter be laid out, which should 
not be opened, &c., within six years, &c., should cease to be a highway, &c., did 
not apply to streets and alleys of towns and cities. The Common Council, &c., 
vs. Croas. 7 Ind. 9; Sec. 1 R. S., 1852, p. 307. See Haynes vs. Thomas, 7 
Ind. 38. See 8 Ind. 378. 

30. Under the Constitution of 1816, the legislature had power to vacate 
roads, streets, &c., and of the propriety of their doing so, they were the exclu¬ 
sive judges so far as their acts might affect the citizens of the State at large; but 
they had no such power where their action would take away a private right. 
Haynes vs. Thomas, 7 Ind. 38. See Constitutional law. 

31. That an appeal lies from the order of county board vacating a public 
highway. See appeal, p. 28. Sheppard vs. Dodd, 15 Ind. 217; Moore vs. 
Smock, 6 Ind. 392. 

32. The affidavit for an appeal cannot be supplied in the circuit court. 
Slayton vs. Hulings, 7 Ind. 144. 

33. Upon appeal from an order of a county board for the payment of the 
damages assessed by reviewers, of a highway, together with the costs out of the 
county treasury, the board is a proper party, and, as such, must be governed by 
the rules of practice that obtain as to other parties. The Board, &c., vs. 
Hedges, 11 Ind. 291. 

34. In a proceeding before the board of commissioners to locate a highway, 
after a report that the road would be of public utility, A made his claim for 
damages in consequence of the highway being located through his land. Asses¬ 
sors were thereupon appointed, who reported that A would sustain no damages, 
and the road was ordered to be opened. Held , that on appeal to the circuit 
court, viewers could not again be appointed to assess A’s damages. Kemp vs. 
Smith, 7 Ind. 471. See Washington Township vs. Butler, 13 Ind. 396. See 
Assessment of Damages. 

Rights of Proprietors along the Lines of Highways. 

35. In the Soil. —If land over which a highway passes has been seized and 
appropriated to that purpose by the right of eminent domain, the freehold still 
technically remains in the owner of the soil. Vaughn vs. Stuzaker, 16 Ind. 
338; 12 Ind. 374. See Covenant Deed. 

36. Where the owner of land, by deed conveys a part thereof to another, to 
be used and occupied as a street, together with the reversion and remainder, 
and all the estate, right, title, &c., of such owner in and to the same, no interest 
is left in such owner that can be sold and conveyed by him. Vaughn vs. 
Stuzaker, 16 Ind. 338. 

37. The right to use and enjoy a street is an appurtenance to a lot abutting 
upon a street, and an injury to the appurtenance is an injury to the whole 
property. Protzman vs. The Indianapolis, &c., Railroad Co., 9 Ind. 467. 

Notice of Petition. 

29. Proof of the posting up of the notice of a petition for the location of a 
highway, may be made before the board of commisstoners by affidavit, and the 
same made of proof is admissible on appeal. Wright vs. Wells et al., 29 Ind. 354. 

21. Same .—The sufficiency of such proof is a judisdictional fact, which 


HIGHWAYS. 243 

must be determined by the board before the appointment of viewers. After the 
board has taken jurisdiction, objection to such proof comes too late. Ib. 

27. If the public utility of a proposed highway is not put in issue by the 
remonstrance, but a claim for damages only is presented, the utility of the high¬ 
way is admitted, and the reviewers have only to report upon the claim for dam ■ 
ages. Smith et al. v. Alexander et al., 24 Ind. 454. 

50. On an appeal from the county board to the circuit court in a proceeding 
for the location of a highway, the circuit court does not take jurisdiction for the 
correction of errors, but must try the cause as an original cause, and make a 
final judgment. The court may execute its own judgment, or send the case 
down to the county board with directions to excute the judgment. McPherson 
v. Leathers, 29 Ind. 65. 

51. In applications for the location or change of public highways, pending 
in the common pleas or circuit court on appeal from the board of county com¬ 
missioners, all errors not properly presented to the court of commissioners will 
be considered by the appellate court to have been waived. Shafer et al. v. Bar- 
dener et al., 19 Ind. 294. 

52. Where viewers report that a proposed location or change of a public- 
highway will not be of public utility, it is*not competent for the appellate or in¬ 
ferior court to order such change or location to be made. Ib. 

53. Practice. —In an appeal to the circuit court from the judgment of the 
board of commissioners, in an application for the location of a highway, all the 
original papers in the application before the commissioners should be sent to the 
circuit court, or the latter will have no authority to try the cause. Purviance et 
al. v. Drover et ah, 20 Ind. 238. 

54. Location of.—Appeal Bond. —A bond signed by the appellants only is 
not a bond with surety, as required by the statute allowing an appeal from the de¬ 
cision of the board of county commissioners in a proceeding for the location of a 
highway (1 G. & H., 364, sec. 26), nor can the defect be cured by filing a proper 
bond in the appellate court. McVey et al. v. Heavenridge et ah, 30 Ind. 100. 

55. Practice. —Where a remonstrance against the location, change, or vaca¬ 
tion of a highway has been received and acted upon by the board of commis¬ 
sioners without objection, it is too late, after the case has been taken by appeal to 
the circuit court, to object that the remonstrants were not persons residing along 
the proposed highway. Wilson et ah v. Whitset et ah 24 Ind. 306. 

56. Parties. —The board of county commissioners is not a necessary party to 
an appeal from an order of the board establishing a highway. Wright et al v. 
Wells, 27 Ind. 65. See Appeal. 

Rights of Proprietors along the lines of Highways. 

57. That the constitutional provision, which provides that the right of trial 
by jury shall remain inviolate, does not extend to proceedings for the assessment 
of damages in the location of highways. See Hines v. Aydelott, 26 Ind. 431. 

58. Grant. —Where one owning lands along the line of a contemplated 
gravel road executed with others a writing giving to the gravel road company 
the right to enter upon his lands and remove gravel, etc., tor the purpose of 
constructing the road, it was held a grant, and not a license which could be re- 

17 


244 


THE BOARD OF COMMISSIONERS. 


voiced at the pleasure of the party giving it. Bracken v. The Rushville, etc., 
Gravel Road Company, 27 Ind. 346. 

59. By the location of a way over the lands of any person, the public have 
acquired an easement which the owner of the land cannot lawfully extinguish or 
unreasonably interrupt. But the soil and the freehold remain in the owner, al¬ 
though incumbered with a way. And every use to which the land may be ap¬ 
plied, and all the profits which maybe derived from it consistently with the con¬ 
tinuance of the easement, the owner can lawfully claim. See Edgerton et al. v. 
Huff, 26 Ind. 35; See Eminent Domain; Easements. 

60. Measure of Damages. —Where land is alleged to be injured by the loca¬ 
tion and opening of a highway through it, the measure of damages will be the 
difference between its market value at the time with the highway, and its market 
value without the highway. Sidener vs. Essex, 22 Ind. 201. See Damages. 

61. That an injunction will lie to prevent the removal of fences for the 
purpose of opening a highway under a void order of the county commissioners. 
See Lewis et al. v. Rough, 26 Ind. 3985 id. 53; 23 id. 623. See Injunctions. 

42. Remonstrance. —It is not necessary, under our statute, that the persons 
remonstrating against the location, vacation, or change of a highway, should re¬ 
side immediately on the line of the highway to be located, vacated or changed, 
but it is enough if they reside in the vicinity, or within such reasonable distance 
.thereof, that they would be affected thereby in their convenience of travel or 
otherwise. Wilson et al. v. Whitsell et al., 24 Ind. 306. 

2. Deviation from the original track is upon an alleged prescriptive right. 
Travel may slightly deviate from the thread of a road which is being used to 
avoid an obstruction, and still not change the road itself. But it is otherwise 
where the whole length of the road is abandoned for eight or nine years, and is 
not sufficiently traveled to prevent its becoming obstructed by the growth cf 
weeds and brush. In such case there is not that continued user which is abso¬ 
lutely necessary to establish a prescriptive right. Gentleman v. Soule, 32 
Ills. 271. 

3. Twenty years is the shortest time within which the public can .acquire a 
prescriptive right to use a road. Ibid. 

4. Nor can the time during which various and distinct lines of travel have 
been used, be so united as to make up the requisite time to establish a prescrip¬ 
tive right to any given single line of road. Ibid. 

5. In this case it was held that the mere survey and platting of a road by a 
county surveyor, under the direction of highway commissioners, did not have 
the effect to establish it as a public highway, it having been designed only to 
ascertain the courses and distances of a road claimed to be already established, 
and leaving the proof of its existence precisely as it was before. Such proceed¬ 
ing had, however, the effect to estop the public from claiming that the road ran 
upon a different line from the survey. Ibid. 

6. The survey and plat of a public road is evidence of its location but is not 
conclusive; but like the field notes of the government surveys, parol evidence 
may be received to show that the road was actually different from the calls in the 
survey of the road. Hiner v. The People, 34 Ills. 297. 

7. Vacation of.—Located by Township Authorities .—A public road, located 
by highway commissioners, must be opened in five years, or the right of way 


HIGHWAYS. 


245 


will revert to the owner of the land, and the road become vacated. To avoid 
the vacation of a road thus laid out and located, it is necessary that it should be 
opened its entire length within five years. It is not sufficient to open only a 
part of such road. Green v. Green, 34 Ills. 320. 

11. For a case where it was held that, in an order establishing a road, the 
description of a route was sufficiently certain. Clifford v. The Town of Eagle, 
35 Ills. 444. 

12. Laying out a Road. —For a case where the proceedings for laying out 
and establishing a road are set forth and commented upon in a suit for obstruct¬ 
ing the same. Ibid. 

13. Description of Route. —Although a road cannot be located from a mere 
reference to the calls and distances given in the order establishing it, yet if the 
court can be satisfied on calling surveyors and receiving proofs on the points of 
location that the road can be located as laid out, the order laying out the road 
will be sufficient. Commissioners of Highways v. The People, 38 Ills. 348. 

14. How acqtiired by the Public. —A public highway may be acquired by 
condemnation, under the statute, by grant from the owner, and by dedication to 
and acceptance by the public, which may be inferred from travel by the public 
and repairs by the proper pubiic authorities. Grube vs; Nichols, 36 Ills. 93. 

20. Abandonment. —Where it appears that the public have ceased to travel a 
road, and have acquired another which accommodates public travel, a jury would 
be warranted in presuming an abandonment of the first road. And it is error to 
instruct the jury that the new road must accommodate the public equally as well 
as the former road. Grube vs. Nichols, 36 Ill. 92. 

3. If a road is used and traveled by the public as a highway, and is recog¬ 
nized and kept in repair as such by the county commissioners and supervisor, 
proof of these facts furnishes a legal presumption, liable to be rebutted, that 
such road is a public highway. Egman vs. The People, 1 Giles, 4; Nesley vs. 
Brown, 1 Giles, 10. 

4. Proof of —It is not necessary to produce record evidence of a road. Ibid. 

5. Parol evidence is admissible to show where a road is located. Ibid. 

7. How Established. —A highway may be established and proved by pre¬ 
scription, by dedication, and by laying out the same as directed by statute. 
Alvordvs. Ashley, 17 Ills. 363. 

9. By Prescription. —A continuous and uninterrupted use of a highway by 
the public for more than twenty years, creates a prescriptive right to the use of 
the road. And this right continues until it is clearly and unmistakably aban¬ 
doned. Town of Lewiston vs. Proctor, 27 Ills. 414. 

15. Commissioners appointed to assess the damages a party may sustain by 

the opening of a road across his premises, have not authority to make an agree¬ 
ment in relation thereto; and any such unexecuted agreement may be revoked. 
Kimball vs. Yates, 14 Ills. 464. • 

17. An overseer of highways, in order to justify for opening a road, under 
an order of the commissioners of highways, must show that a case existed which 
justified the order issued by them. Guptail vs. Yeft, 16 Ills. 365. 

18. Notice. —Supervisors, in the matter of opening a road, when they dismiss 
and adjourn, without any intention of further action, cannot resume the subject, 
unless notice of the time and place of a future meeting be served on the com- 


246 


THE BOARD OF COMMISSIONERS. 


missioners of highways, and on the three petitioners before served. Without 
this notice, the action of the supervisors is void. Keech vs. The People, 22 
Ills. 478. 

22. The laying out and opening of roads is not an exercise of judicial pow¬ 
ers ; but the presumption is, that the antecedent proceedings have been regular , 
which presumption, however, is subject to be rebutted. Nealy vs. Brown, I 
Gilm. 10. 

24. A road is to be considered as established, and, in contemplation of law, 
opened, when the proper court have approved of the report of the viewers, and 
sanctioned the location. Ferris vs. Ward, 4 Gilm. 400. 

25. A claim of damages, occasioned by the location of a public road, is not 
to be presumed, but must be expressly made, and at the proper time, so that, if 
the State or county thinks the payment of damages too great a sacrifice for the 
benefits to be obtained by having a road, it may abandon the project, or locate it 
elsewhere. Ibid; County of Sangamon vs. Brown, 13 Ills. 207. 

26. Practice .—For a full discussion of the practice in the county and circuit 
courts in the matter of proceeding to claim damages for the laying a road over 
the claimants’; and the questions to be decided in said courts, and the right to, 
and who may appeal, and how, from the county court to the circuit court, see 
County of Sangamon vs. Brown, 13 Ills, 207. 

32. A highway may be legally laid out and established by public use, and 
recognition of it by the proper authorities, and by acquiesence. Dimon v. The 
People, 17 Ills. 416; Daniels vs. The People, 21 Ills. 439. 

34. Abandonment .— Vacating of .—If the public is to be charged with the 
abandonment of a road, the proof of the fact must be accompanied by the fur¬ 
ther proof that another road has been adopted in its stead. A public road, 
established by public authority, continues as such until it shall be vacated by a 
like authority. Champlin vs. Morgan, 20 Ills. 181; Town of Lewiston vs. 
Proctor, 27 Ills. 414. 

44. After the owner of land has accepted the damages’allowed for opening 
a highway, it is too late for him or his grantee to declare the proceedings for 
opening it void. Town vs. Town of Blackberry, 29 Ills. 137. 

38. Inclosures .—If the viewers appointed to lay out a highway find an “ in¬ 
closure” on the route petitioned for, the owner of which will not consent that 
the road shall be located through it, and they ascertain that a good route for a 
road can be otherwise had, they cannot locate the road through such inclosure, 
nor can they locate it upon such other route, if such other route would be an 
essential departure from the route mentioned in the petition. Holcraft vs. King 
et al., 25 Ind. 352. 

39. Same .—When the report of the viewers is silent concerning such an 
inclosure, it will be presumed that there is none, or that the owner has given the 
consent required. Ibid. 

42. Remonstrance .—It is not necessary, under our statute, that the persons 
remonstrating against the location, vacation, or change of a highway, should 
reside immediately on the line of the highway to be located, vacated, or changed, 
but it is enough if they reside in the vicinity, or within such reasonable distance 
thereof that they would be affected thereby in their convenience of travel or 
otherwise. Wilson et al. v. Whitsell et al., 24 Ind. 306. 


RAILROADS. 


247 


CHAPTER XI. 


AN ACT to authorize aid to the construction of railroads by counties and town¬ 
ships taking stock in, and making donations to railroad companies. 

[Approved May 12 , 1869 .] 

Section 1 . Be it enacted by the General Assembly of the 
State of Indiana , That whenever a petition shall be presen¬ 
ted to the Board of Commissioners of any county in this 
State, at any regular or special session thereof, signed by 
one hundred or more freeholders of said county, asking said 
board to make an appropriation of money to aid a railroad 
company, named in such petition, then duly organized un¬ 
der the laws of this State in the construction of a railroad 
in or through such county, or whenever such a petition shall 
be presented to such Board of Commissioners as aforesaid, 
signed by twenty-five freeholders of any township of such 
county, asking such township to make an appropriation of 
money to aid a railroad company named in such petition, 
and duly organized as aforesaid, in constructing a railroad 
in or through such township, by taking stock in or donat¬ 
ing money to such company to an amount specified in such 
petition, not exceeding, however, two per centum upon the 
amount of the taxable property of such county or town¬ 
ship, as the case may be, on the tax duplicate of the coun¬ 
ty, delivered to the treasurer of the county for the preced¬ 
ing year, it shall be the duty of such Board of Commis¬ 
sioners, after being satisfied that such petition has been pro¬ 
perly signed by the requisite number of freeholders of such 
county or township, as aforesaid, to cause the same to be 
entered at full length uport their records. 

Sec. 2 . The Board of Commissionei’s shall take said pe¬ 
tition under advisement and thereupon order the polls at 
the several voting places of the county, or of the particular 
township, a3 the case may be, to be opened on a day to be 
named in the order, which shall not be less than thirty nor 


243 


THE BOARD OF COMMISSIONERS. 


more than sixty days thereafter, and the votes of the legal 
voters of said county, or of the particular township named 
in said petition, to be taken upon the subject of appropri¬ 
ating money by such county or by such township, for the 
purpose of aiding in the construction of such railroad as 
prayed for in said petition. The judges and inspectors of 
elections shall be governed in the reception of votes by the 
laws then in force regulating general elections. Xo special 
registry shall he required as preliminary to the elections 
prescribed by this act, but the last preceding registry shall 
govern. 

Sec. 3. The Auditor of such county shall immediately 
give notice, to be published for at least four weeks suc¬ 
cessively in some newspaper of general circulation in 
the county, or, if none be published therein, in some 
newspaper most convenient thereto, and by printed hand¬ 
bills, to be posted in three public places in each town¬ 
ship of the county where a county appropriation is prayed 
for, or in ten public places in the particular township where 
a township appropriation is prayed for in the petition. Said 
handbills shall be posted by the sheriff of the county, three 
weeks prior to the day fixed for taking the vote of the 
county or of the particular township named in said petition, 
as the case may be, and the same, as well as said newspaper 
publication, shall notify the qualified voters of the county 
or of the particular township, as the case may be, that the 
polls will be opened on the day fixed by order of the Board 
of Commissioners, at the several voting places in the coun¬ 
ty, or in the township, as the case may be, to take the votes 
of the legal voters thereof upon the subject of such county 
or township aiding in the construction of the railroad named 
in such petition, to an amount to be specified in such notice; 
and the Auditor of the county shall make his official certi¬ 
ficate that the said notice wa3 published, and said Sheriff 
shall make his like certificate that said handbills were post¬ 
ed as required by this act, which certificates shall be entered 
upon the records of the Board of Commissioners, and shall 
be sufficient of the facts therein stated. 

Sec. 4. The polls shall be opened at the several voting 


RAILROADS. 


249 


places in the county, or township, as the case may be, by 
the proper judges and inspectors of election on the day fixed 
by said commissioners, and the boards shall be organized 
and poll books and tally sheets shall be kept, and the whole 
voting and taking and certifying of votes shall be conduct¬ 
ed as nearly as may be in the manner provided by law for 
conducting the voting and certifying the votes at the gen¬ 
eral election for State and county officers. 

Sec. 5 . The qualifications of voters, to vote at the polls 
to be opened as required by this act, shall be ascertained, 
and challenges shall be allowed, in the same manner as is 
now or may be provided by law for ascertaining the quali¬ 
fications of voters and making challenges at general elec¬ 
tions. 

Sec. 6 . The ballots used at such voting as provided for 
in this act, shall be written or printed, and those cast for 
the appropriation by the county or township, as the case 
may be, to aid such railroad company, shall contain the 
words, “ For the Eailroad Appropriation,” and those cast 
against it shall contain the w T ords “ Against the Eailroad 
Appropriationand if two or more ballots shall be found 
purposely folded together they shall be rejected. 

Sec. 7 . "When the ballots shall be counted the Board of 
Judges shall make out a certificate under their hands sta¬ 
ting in words the number of votes given for the appropria¬ 
tion to the railroad company, and the number given against 
such appropriation, and such certificate, together with one 
of the lists of voters or poll books, and one of the tally 
sheets, shall be deposited with the inspector or with one of 
the judges selected by the Board of Judges. 

Sec. 8 . The inspector of each township or precinct, or 
judge of election, to whom such certificate, poll book and 
tally sheets shall have been delivered, shall, when the ques¬ 
tion is as to an appropriation by the entire county, consti¬ 
tute a Board of Canvassers who shah canvass and estimate 
the certificates, poll books and tally sheets returned by each 
member of said board, for which purpose they shall assem¬ 
ble at the court house on the Thursday next succeeding the 
day of such voting, between the hours of ten o’clock, A. 


250 


THE BOARD OF COMiTISSIOXERS. 


M., and six o'clock, P. M., but when the question is to an 
appropriation by a particular township, having more than 
one election precinct, the inspector of each precinct, or the 
judge of election to whom such certificate, poll book and 
tally sheets shall have been delivered shall constitute such 
Board of Canvassers, and shall meet at the time and place 
aforesaid, and perform the duties aforesaid; if, however, 
such township shall have but one election precinct, then the 
inspector and judges thereof, or any two of them, shall con¬ 
stitute the Board of Canvassers, and shall meet at the time 
and place aforesaid, and perform the duties aforesaid. 

Sec. 9. The members of the board who shall assemble 
at such time and place, shall select one of their number 
chairman, and the Auditor shall act as their clerk. 

Sec. 10. Such board, when organized, shall carefully 
compare and examine the papers, and shall prepare and sign 
a statement of the whole number of votes cast, and the 
number for such appropriation to the railroad company and 
the number against it. 

Sec. 11 . The statement of such vote, as provided in the 
preceding section, shall be filed with the said Auditor, who 
shall record the same at full length in the records of the 
Board of Commissioners of said county, and carefully file 
away and preserve the certificates, poll books and tally sheets 
aforesaid. 

Sec. 12 . If a majority of the votes cast shall be in favor 
of such railroad appropriation, the Board of County Com¬ 
missioners, at their ensuing regular June session, shall grant 
the prayer of said petition, and shall levy a special tax of 
at least one-half the amount specified in said petition, but 
not exceeding one per centum upon the real and personal 
property in the county or township, as the case may be, lia¬ 
ble to taxation for State and county purposes, which tax 
shall be collected in all respects as other taxes are collected 
for State and county purposes; and if the sum so levied 
shall not be equal to the amount specified in said petition, 
then the residue thereof shall be levied by said Board of 
County Commissioners at the June session of the following 
year. 


RAILROADS. 


251 


Sec. 13. No county or township shall be authorized by 
the provisions of this act to appropriate to railroad purposes, 
or to raise by taxation for such purposes, to exceed two per 
centum upon the taxables of such county or township (as 
said taxables shall appear on the tax duplicate of the county), 
in any one period of two years. 

Sec. 14 . Said Board of Commissioners may, after the 
assessment herein provided for, or any part thereof, shall 
have been collected, take stock in said railroad company, 
from time to time, in the name of the proper county or 
township, as the case may be, and pay therefor, when the 
same is taken, out of the moneys so collected as aforesaid, 
or they may donate such moneys to said company for the 
purpose of aiding in the construction of such railroad, and 
pay the same over, from time to time, as the work progresses, 
as hereinafter provided. 

Sec. 15 . If, after the special tax shall have been levied, 
as provided for in the twelfth section of this act, and before 
it has been collected, the railroad company shall have so far 
completed the road to be aided as to be entitled to receive 
the money which the Board of Commissioners are author¬ 
ized to donate, the same may be paid on the order of the 
board out of any moneys in the county treasury not other¬ 
wise appropriated, to be refunded to the county when such 
special tax shall have been collected. 

Sec. 16 . No donations of money shall be made to any 
railroad company by such Board of County Commissioners 
until the railroad to be constructed shall have been perma¬ 
nently located and work thereon done and paid for by the 
company equal to the amount of the donation then made; 
nor shall to exceed fifty per cent, of the money voted to be 
appropriated to such railroad company be donated and paid 
over to the company until the iron is laid upon the road and 
a train of cars shall have passed over the entire length there¬ 
of in such county or township, as the case may be. 

Sec. 17. After the money authorized by this act to be 
appropriated shall have been levied and collected as afore¬ 
said, and the subscription shall have been made on behalf 
of the county or township, as the case may be, the railroad 


252 


THE BOARD OF COMMISSIONERS. 


company, for whose aid the same shall have been so levied 
and collected, having fully constructed the railroad contem¬ 
plated in said petition, so that trains of cars shall pass over 
the same, shall have the right to demand and have said mo¬ 
ney paid over according to the intent and meaning of this 
act; and any one of said petitioners, or any tax payer of 
the county or township, as the case may be, may compel 
the same to be done by mandate against the County Com¬ 
missioners. 

Sec. 18 . A failure on the part of the railroad company 
to commence work upon the railroad in said county within 
one year from the levying of such special tax, or failure to 
complete such railroad ready for use within three years from 
such levying, shall forfeit the rights of such company to 
such donation, unless the County Commissioners, for good 
cause shown, shall give not to exceed one year’s further time 
in which to complete the same, and the money raised by 
said special tax shall go into the general funds of the coun¬ 
ty or township, as the case may be, and be used accord- 

ingly. 

Sec. 19 . The officers conducting the elections, provided 
in this act, shall be allowed the same pay as is allowed for 
like services in case of a general election. Should the elec¬ 
tion result in favor of a railroad appropriation, the expenses 
of the election, after being paid by the county or township, 
as the case may be, shall be charged against the railroad 
company benefited, and deducted out of the first moneys 
collected by virtue of the appropriation. 

Sec. 20 . Inasmuch as an emergency exists for the im¬ 
mediate taking effect of this act, it is therefore declared 
that this act shall take effect and be in force from and after 
its passage. 

“ There is nothing that so generally excites the imagin¬ 
ation and engages the affection of mankind as the right 
of property.” There is a general feeling that pervades the 
human breast, and which seems to be interwoven into the 
very tissues of our nature, that tells us that we have the 
exclusive right to the earning of our hands. Prompted by 
these feelings, and being aware of the importance of prop- 


RAILROADS. 


253 


erty to our earthly enjoyment, any encroachment upon 
these rights awakens in us the deepest solicitude, anxiety 
and care. And for the protection in aud enjoyment of 
these rights man is ready to sacrifice his all; and it is only 
by his consent, either expressed or implied, that he will 
suffer himself to be disturbed in the enjoyment of this 
sacred right. At an early age in the history of society 
this right was fully appreciated aud understood, and hence 
the rules of the common law, that seems to have been dic¬ 
tated by the feelings of natural justice and right that arise 
spontaneously in the human breast, inflict the most rigid 
punishment upon the individual who encroaches upon this 
right. This right being held in such esteem, and being so 
highly appreciated by mankind, the legislative authority 
of this country acting in accordance with the feeling and 
sentiments of the entire people, have thrown around each 
citizen of this great Republic the strong arm of a well reg¬ 
ulated municipal law, to uphold and protect him in the en¬ 
joyment of these rights. But it would be hazardous to 
intrust such rights to the will and caprice of a few chosen 
representatives. The people have therefore taken the mat¬ 
ter in hand, and have planted around themselves an im¬ 
pregnable wall of protection in the shape of constitutional 
law, that guides and controls the action of the law-making 
power. Hence we find incorporated in the Constitution 
of the United States, and in the constitution of almost 
every State in the Union, this provision: “ The right of 
the people to be secure in their person, houses, papers and 
effects against unreasonable searches and seizures shall not 
be violated.” (m) 

But as a certain amount of money is absolutely neces¬ 
sary, for to carry on the affairs of the government, and as 
each citizen is equally protected in the enjoyment of his 
natural rights, each should be compelled to bear the pro¬ 
portional part of the necessary expense. But as men 
would differ in the amount they ought to furnish for the 
benefit of the whole, the power to regulate and settle this 


(m) i G. & H., p. 22, sec. 4 Constitutional Amendment. 



254 


THE BOARD OF COMMISSIONERS. 


point must be lodged by the people with some person or 
persons, and under our State constitution this power is 
given to the General Assembly. The constitution provides 
44 That the General Assembly shall provide by law for a 
uniform and equal rate of assessment and taxation, and 
shall prescribe such regulations as shall secure a just valu¬ 
ation for taxation of all property, both real and personal,” 
&c. This power being lodged in the General Assembly, it 
must provide by law for a uniform mode of taxation; and 
it must do this in the way prescribed in the constitu¬ 
tion, or the act will be void. And after they have pro¬ 
vided a system and prescribed regulations for the gov¬ 
ernment of all the inferior tribunals in carrying out and 
enforcing the provisions of their law, these rules should 
be strictly adhered to, or the acts of these tribunals will be 
coram non judice and void. In the case of English and 
others vs. Smock and others, which was a proceeding to 
enjoin the board of commissioners of Marion county from 
issuing the bonds of the county for the sum of four hun¬ 
dred thousand dollars, and putting them on the market to 
raise money to build a new court-house, and to complete 
the building of an asylum for the poor, already in pro¬ 
gress of erection, after noticing several of the minor 
points in the case, the court says: 

44 The board of commissioners is a court of inferior and 
limited jurisdiction, and it is well settled, both on principle 
and by authority, that where statutory powers are confer¬ 
red on such a tribunal, and a mode of executing these 
powers is prescribed, the course pointed out must be 
strictly pursued, or the act of such court will be coram non 
judice and void ”(n) And Mr. Adams, in his work on 
Equity, states the rule thus: 44 The same principles are 
applicable to all other persons who have been authorized 
by the legislature to do any specified act which, without 
such authority they would be incompetent to do ”(o) 
Chief Justice Marshall, in the case of Thatcher vs. Powell, 
says: 44 In a summary proceeding, where a court exercises 

i n ) 34 Ind. 115 } Mossman vs. Forrest, 27 Ind. 233 j White vs. Conover, 5 
Blackf. p. 462. (0) Adams’ Equity, p.212. 



RAILROADS. 


255 


an extraordinary power, under a special statute prescribing 
its course, we think that course ought to be exactly observed, 
and those facts especially which give jurisdiction, ought to 
appear in order to show that the proceedings are coram 
judice. In other words all the facts which are essential to 
the exercise of the power, must affirmatively appear upon 
the face of the record; they cannot be supplied by proof 
or made out by intentment; the authorities on this point 
are uniform.” If, on the other hand, this special authority 
is conferred on an inferior tribunal of limited jurisdiction, 
or upon commissioners, or upon any other individuals 
who are quod hoc in a judicial capacity, the rule is still 
more strict. It is thus laid down: When a special au¬ 
thority is delegated by statute to particular persons, or to 
an inferior tribunal affecting the property of individuals 
against their will, the course prescribed by law must be 
strictly pursued, and appear to be so upon the face of the 
proceedings, or the power is not well executed.(p) Mr. 
Blackwell, in his able w T ork on tax titles says, in speaking 
in reference to the power conferred upon an inferior tribu¬ 
nal of limited jurisdiction, “ There is still another rule of 
law which may be properly applied to powers of this char¬ 
acter. Where a statute creates a new power, and at the 
same time provides the means and mode of executing it, 
those to whom the power is intrusted can execute it only in 
the mode prescribed. This rule requires a rigid adherence 
to the direction and forms which the legislature has seen 
proper to lay down for the government of its agent. The 
power is purely arbitrary, and this furnishes a strong reason 
why it should not be exercised in an arbitrary manner. If 
the forms required to be observed are once departed from, 
there is an end of all legal restraint. This would be intol¬ 
erable to a free people. Ho court would venture to sanc¬ 
tion a doctrine that would operate to vest such an un¬ 
bounded discretion in any officer. Discretionary power is 
contrary to the genius of our laws and institutions. (q) The 
act of any executive officer from the President down to a 

(/) Blackwell on Tax Titles, p. 39; Smith v. Hileman, 1 Scammon, p. 323. 
(q) Blackwell, p. 49. 



256 


THE BOARD OF COMMISSIONERS. 


town constable is void where he has no authority, or pro¬ 
ceeds contrary to the mode prescribed by the constitution 
and laws.”(r) 

The act approved March 12,1869, confers upon a cer¬ 
tain number of freeholders of the county, or of any town¬ 
ship within this State, and upon the board of commission¬ 
ers, an extraordinary power. And in the exercise of these 
powers they must follow the exact course marked out by 
the statute, or their acts will be coram non judice and void. 
It will be seen by reading section 1 supra , that the first 
thing to be done by the citizens of a county or township, 
who desire to raise by taxation a certain amount of money, 
to aid a railroad company in constructing its road through 
said county or township, is to get up a petition. 

Form where a county appropriation is prayed for: 

To the Honorable Board of Commissioners of Vermillion county: 

We, the undersigned, resident freeholders of Vermillion 
county, Indiana, 'would respectfully ask your honors to 
make an appropriation from said county of one hundred 
thousand dollars to aid the Evansville, Terre TIaute & 
Chicago Railway Company, a corporation now duly organ¬ 
ized under the laws of the State of Indiana, in construct- 
ing'its road through said county; and that you take stock 
in said company to that amount. And we will ever pray. 

[To be signed by one hundred freeholders.] 

This petition must be signed by one hundred resident 
freeholders of the county. And it would seem that if the 
petitioner is a freeholder that this is all the qualification 
the law requires, but we think otherwise. To petition a 
tribunal for a public favor requires an intelligent act, and 
an understanding of the wants of the people. And we 
think that this statute should be taken and construed in 
connection with the rules of the common law, which require 
all acts to be done by a free, intelligent agent. Therefore 
the petition must not only be signed by one hundred free- 


(r) Blackwell, p. 55. 




RAILROADS. 


257 


holders, but by one hundred adult, free, intelligent land 
owners of the county. A petition signed by idiots, insane 
or destracted freeholders of the county, would be insuf¬ 
ficient ; or a petition signed by one hundred minors, or 

married women freeholders, would be bad. See ante p.- 

of this work. 

The petition must ask for a specific amount; the amount 
must be specified in the petition in clear and comprehensive 
language, so that it can be readily understood, or the 
whole proceeding will fall to the ground. Our supreme 
court held, in the case of the Detroit, Eel River & Illinois 
Railroad Company (not reported yet) vs. Daniel R. Bears, 
that a petition that prayed for an appropriation of an 
amount of two per cent, on the taxable property of a 
township, was not sufficient. The amount must be defi¬ 
nitely named in the petition in dollars and cents, and 
must not rest on some mathematical calculation, which 
the citizens will have to make before they can ascer¬ 
tain the amount asked for in the petition. The amount 
asked for in the petition must not exceed two per centum 
upon the amount of taxable property of such county or 
township as the case may be, as appears on the tax dupli¬ 
cate of such county for the preceding year. If the peti¬ 
tion asks for a greater amount than two per centum upon 
the amount of taxable property of such county or town¬ 
ship as appears on the tax duplicate of such county for the 
preceding year, it will not be sufficient and the whole pro¬ 
ceeding must fall to the ground. The freeholders are not 
authorized by the law to ask for more than this, and if 
they do their act is without authority and void. The first 
thing that the citizens of any county or township who 
wish to raise money in this way should do/is to ascertain 
the exact amount of taxable property both real and per¬ 
sonal of such county or township, as it appears on the tax 
duplicate of the county delivered to the treasurer by the 
auditor of the county for the preceding year, and then 
ascertain what two per centum of this amount would be, 
and draft their petition to suit the fact. They can ask for 
two per centum or any amount under that sum, but they 


258 


THE BOARD OF COMMISSIONERS. 


can ask for no more. If the amount asked for in the peti-. 
tion exceed the two per centum on the tax duplicate for 
the year preceding the filing of the petition, by one dollar, 
the whole proceeding will be void. This law, says our 
supreme court, in the case of-, must be car¬ 

ried out in letter and spirit. 

The railroad company must have been regularly organized 
under the laws of the State before the filing of the petition, 
and its road must run through some portion of the county 
o»r township which is proposing to make the appropriation. 
After the petition has been signed by the requisite number 
of freeholders, you must take it to the county seat and pre¬ 
sent it to the board of commissioners while in session, either 
at a regular or special sitting, make the proof that the sign¬ 
ers are all resident freeholders of the county or township pro¬ 
posing to make the appropriation, then hand your petition 
to the county auditor, have him mark it filed. It will then 
be in the hands of the commissioners, who, if satisfied that 
the petition has been properly signed by the requisite num¬ 
ber of freeholders of such county or township, must cause 
the same to be entered at full length on the record. After 
this is done, the law says they must take said petition under 
advisement. The sentence “ shall take said petition under 
advisement/’ means shall take said petition for examination, 
consultation, or for information. Under this section of the 
statute it is made the duty of the board to examine the peti¬ 
tion, and see whether it is correct in form—whether the peti¬ 
tioners are all compus mentis and adult citizens of the county. 
They must also examine the duplicate of their county deliv¬ 
ered to the treasurer of the county by the auditor thereof 
for the year preceding the filing of the petition, and see 
whether the amount asked for in the petition exceeds two 
per centum on the amount of taxable property of the 
county or township asking for the appropriation, as appears 
on said duplicate. They should also examine their own 
record, and ascertain whether there has been any other tax 
levied upon the people of the county or township, proposing 
to make the appropriation in the last two years. If, on 
examination of all the facts, they are of the opinion that 




RAILROADS. 


259 


there is a defect in the petition, or that the appropriation 
asked for in the petition exceeds two per centum on the 
taxable property of such county or township, as appears on 
the treasurer’s duplicate for the preceding year, or that there 
has been a former tax levied which, together with the one 
asked for, will exceed two per centum on the taxable prop¬ 
erty or the tax duplicate of the county in any one period 
of two years. Or if there is any other valid defect they 
should proceed no further, but refuse to grant the prayer 
of the petiton at once. But if the board is clearly of the 
opinion that all the requirements of the law have been com¬ 
plied with, they should enter their conclusion of record, and 
thereupon order the polls at the several voting places in 
the county or township, as the case may be, to be opened 
on a day to be named in their order, which shall not be less 
than thirty nor more than sixty day3 from the granting of 
the order to take the votes of the legal voters of such county 
or township, to be taken-upon the subject of such county 
or township appropriating money for the purpose of aiding 
in the constructing of such railroad as prayed for in the 
said petition. 

Great care should be taken in making up the record of 
the board in such cases. 

FORM OF RECORD. 

Board of Commissioners of Vermillion County , > 
September Term, 1872. J 

Present: A., B. and C., Commissioners. 

J. A., Auditor. 

L. C., Sheriff. 

In matters pertaining to the tax to aid the Evansville^ 
Terre Haute and Chicago Kailway Company, 

Whereas, a petition was presented on the second day of 
this term of this court, asking that an appropriation of 
money be made for the county to the amount of one hun¬ 
dred thousand dollars, to aid the Evansville, Terre Haute 
and Chicago Kailroad Company in constructing its road 
through said county; aud 
18 


260 


THE BOARD OF COMMISSIONERS. 


Whereas, after hearing the evidence, we became satisfied 
that all the petitioners who signed said petition were adult 
resident freeholders of Vermillion county, we did then order 
said petition to be spread at full length upon the record of 
this hoard. We then took said petition under advisement, 
and after having given the same a careful examination, it is 
the opinion of this board that said petition is in conformity 
to law, and that the prayer thereof ought to be granted. 
It is therefore ordered that the polls be opened at the sev¬ 
eral places of voting in said county on the 25th day of Oc¬ 
tober, 1872, for the purpose of taking the votes of the legal 
voters of said county upon the subject of appropriating 
money by said county for the purpose of aiding in the con- 
-struction of the Evansville, Terre Haute and Chicago Rail¬ 
road, as prayed for in the petition filed in this court on the 
•second day of this term. 


A.. 

b.; 

C., 



After the board has found that the petition is in conform¬ 
ity to law, and make their order for an election, the auditor 
must give notice, to be published for at least four weeks suc¬ 
cessively in some newspaper of general circulation in the 
county; if none is published in the county, then in a news¬ 
paper most convenient thereto, and by printed handbills, to 
be posted in three public places in each township in said 
county where a county appropriation is prayed for, or in 
ten public places in a particular township where a township 
appropriation is prayed for in the petition. 

The newspaper publication and the printed handbill must 
notify the qualified voters of the township or county from 
which the appropriation i3 to be made, that the polls will 
be opened on the day ordered by the board, to take the 
votes of the legal voters of the county or township for aid¬ 
ing in the construction of the railroad named in the peti¬ 
tion to the amount specified in the petition. The auditor 
should be very careful and give the exact amount in dollars 
and cents in the notices; for unless the correct amount is 
set out in the notice, the whole proceeding will be void. 


RAILROADS. 


261 


FORM OF NOTICE. 

Notice is hereby given, that the polls will be opened at 
the several places of voting in Vermillion county, Indiana, 
on the 25th day of October, A. D., 1872, for the purpose of 
taking the votes of the legal voters of said county aiding 
the Evansville, Terre Haute and Chicago E ail way Company 
in constructing its railroad through this county to the amount 
of one hundred thousand dollars; the same being ordered 
by the board of county commissioners of September ses¬ 
sion, 1872. 

In witness whereof I have hereunto set my hand and 
affixed the seal of said board, this September 13th, 1872. 

Tseal 1 ^^-’ 

L J Auditor of Vermillion County , Indiana. 

The notice or handbills must be posted by the sheriff of 
the county three weeks prior to the day fixed for taking the 
vote of the county or township. The auditor must make 
his official certificate that the notices were stuck up accord¬ 
ing to law. 

auditor’s certificate. 

I, J. T., Auditor of Vermillion County, Indiana, do 
hererby certify that I caused notice to be given of the time 
and place of holding an election in Vermillion county Indi¬ 
ana, for the purpose of taking the votes of the legal voters 
of said county, upon the subject of said county appropria¬ 
ting one hundred thousand dollars to aid the Evansville, 
Terre Haute and Chicago Eailroad Company in constructing 
its road through the county aforesaid, for four weeks suc¬ 
cessively, prior to the 25th day of October 25th, 1872 in the 
Hoosier State, a weekly newspaper published in said county. 

The first of said publications was made on — day of- 

the second on — day of-, the third on — day of-, 

and the fourth on — day of-, all in the year 1872. A 

copy of said notice is attached hereto and made a part of 
this certificate. 

In witness whereof I have hereunto set my hand and 
official seal, this — day of October, 1872. 

J. T., Auditor . 


262 


THE BOARD OF COMMISSIONERS. 


sheriff’s CERTIFICATE. 

I, J. S. T., Sheriff of Vermillion Comity, Indiana, do 
hereby certify that I posted up printed notices of the time . 
and place of holding an election in Vermillion county, 
Indiana, for the purpose of taking the votes of the legal 
voters of said county upon the subject of said county appro¬ 
priating one hundred thousand dollars to aid the Evaus-\ 
ville, Terre Haute aud Chicago Railway Company in con¬ 
structing its road through said county, in three of the most 
public places in each township of said county. That I 
stuck up in the township of H., one notice at P., one at G., 
one at C.; that I stuck up in the township of E., one notice 
at E., one at P., and one at L.; that I stuck up in the town¬ 
ship of V., one notice at JSL, one at E., and one at G.; in 
the township of Kelt, I stuck up one notice at .T., one at C., 
one at Summit; in the township of C., I stuck up one 
notice at C., one at H., one at L. That I posted said notices 
up on the 12th and 13th days of September, 1872. A copy 
of said notice is hereto attached and made a part of this 
certificate. 

In witness whereof I hereunto set my hand, this — day 
of-, A. D. 1872. 

J. S. T-, 

Sheriff of Vermillion County , Indiana. 

The auditor’s and sheriff’s certificates must be entered by 
the auditor upon the record of the board of commissioners. 

It is also provided by section 1, supra, that whenever a 
petition shall be presented to the board of commissioners 
of any county in this State, signed by twenty-five freehold¬ 
ers of any township in said county, asking such township 
to make an appropriation of money to aid a railroad com¬ 
pany named in such petition, and then duly organized under 
the laws of this State, in constructing a railroad in or 
through such county, by taking stock in or donating 
money to such company, not to exceed two per cent, upon 
the amount of taxable property, upon the tax duplicate 
delivered to the treasurer of the county by the auditor 
thereof for the preceding year. But as the proceedings of 



RAILROADS. 


2G3 


tlie board in a case of this kind are identically the same as 
where a county appropriation is prayed for, I shall give the 
form for petition in case of township appropriation, &c., and 
then treat them together. 

Form of Petition for Township Appropriation. 

To the Honorable Board of Commissioners of Vermillion Co.: 

We, the undersigned, resident freeholders of Ilelt Town¬ 
ship, Vermillion county, Indiana, would respectfully ask 
your honors to make an appropriation from the aforesaid 
township of twenty thousand dollars, to aid the Evansville, 
Terre Haute and Chicago Railway Company, a corporation 
now fully organized under the laws of the btate of Indiana, 
in constructing its road through said township, and that 
you take stock in said company to the amount specified in 
this petition, and we will ever pray. 

(This must be signed by 25 freeholders.) 

On presenting this petition to the board, make proof that 
the signers are freeholders of the township and adults, &c., 
as in case of county appropriations. (See ante-page —.) 
The board must examine the petition, and order it spread 
on the record, &c., enter an order for an election, the same 
as in case of a county appropriation. The auditor must 
give the same notice as in case of county appropriation. 
There must be ten printed handbills stuck up by the sheriff 
in ten of the most public places in the township ; at least 
three weeks before the day fixed for the election. The 
auditor and sheriff must make their certificates the same as 
in a county appropriation. (For forms, we refer the reader 
to our comment on county appropriations, ante-page, —.) 

On the day set for holding the election, the polls must be 
opened by the township trustees and the proper inspectors 
in each township throughout the county; or, if a township 
appropriation is prayed for, at each precinct in the town¬ 
ship. The board of judges is elected in the same way as at 
ordinary elections. And all adult male citizens of the age 
of twenty-one, residing in the county or township, are enti- 


264 


THE BOARD OF COMMISSIONERS. 


tied to vote at such an election. The ballots may be either 
written or printed. Those persons who wish to vote for 
the appropriation must have on their ballots these words: 
“ For the Bailroad Appropriation Those who wish to vote 
against the appropriation, must have on their tickets these 
words: “ Against the Bailroad Appropriation.” Unless your 
ticket is so written or printed, it will be rejected by the 
inspector and board of judges. If two or more ballots are 
found purposely folded together, they shall be rejected. 

After the ballots have been counted, the board of judges 
shall make out a certificate under their hands, stating in 
words the number of votes given for the appropriation to 
the railroad company, and the number given against the 
appropriation, and such certificate, together with one of 
the lists of votes or poll books, and one of the tally sheets,, 
shall be deposited with the inspector, or with one of the 
judges selected by the board of judges. The inspector of 
each township, or precinct, or judge of election to whom 
such certificate, poll books and tally sheets, shall, when the 
question is as to appropriation by the entire county, consti¬ 
tute a board of canvassers, who shall canvass and estimate 
the certificate, poll books and tally sheets. For which pur¬ 
pose they shall meet at the court house on Thursday next 
succeeding the day of such voting, between the hours of 
ten o’clock a. m. and six o’clock p. M. When the appro¬ 
priation is for a township having more than one precinct. 
The inspector of each precinct, or judge of election to 
whom such certificate, poll books and tally sheets' shall 
have been delivered, shall meet at the court house on 
Thursday next after election, between 10 o’clock A., m. and 
6 o’clock p. M., and must canvass and estimate the certifi¬ 
cate, poll books and tally sheets. When the members of 
the board of canvassers who shall assemble at the court¬ 
house shall select one of their number chairman, and the 
auditor shall act as their secretary, or clerk, such board, 
when organized, shall carefully compare and examine the 
papers, and shall prepare and sign a statement of the whole 
number of votes cast, and the number for such appropria¬ 
tion to the railroad company, and the number against it. 


RAILROADS. 


265 


Form for the Statement of the Board of Canvassers for 
County Appropriation: 


STATE OF INDIANA, \ od . 

Vermillion County. J ss " 

Be it known that on Thursday,-day of-, 18—, 

the undersigned return judges of the several township and 
polls of election held in the county of Vermillion aforesaid, 
for the purpose of taking the votes of the qualified voters 
of said county upon the subject of appropriating money by 
such county for the purpose of aiding the Evansville, 
Terre Haute & Chicago Kailway Company in constructing 
its railroad through said county. Said election was held 
on the 25th day of October, 1872. Having assembled at 
the court-house in Newport, in the county and State afore¬ 
said, between the hours of ten o’clock a. m. and six o’clock 
p. m. of said-day of-, we did then and there se¬ 

lected W. P., chairman of said board; J. T., auditor of 
said county and ex-officio clerk of said board, was also 
present, acting as such clerk. Whereupon each member 
of the board produced the certificate of the number of 
votes cast at said election; also the poll books, certificates 
and tally sheets of said election to him delivered according 
to law. And after a careful examination and comparison 
of the papers, make the following statement: The whole 
number of votes cast at said election was (1,900) nineteen 
hundred. That the number of votes cast at said election 
for the appropriation to the railroad company was one 
thousand; the number of votes cast against said railroad 
appropriation, nine hundred. 

This-day of October, 1872. 

W. P., Chairman . 


S. W.A 

T. W., 
M. S., } 


Board of Canvassers . 


S. M., 
H. A., 


Attest: S. T., Auditor . 


If the appropriation is to be made from a township hav¬ 
ing more than one precinct, the inspector of each precinct, 





266 


THE BOARD OF COMMISSIONERS. 


or the judge of the election to whom such certificate poll 
books and tally sheets shall have been delivered, shall con¬ 
stitute the hoard of canvassers, and must meet at the court 
house on Thursday after the election, and elect one of their 
number chairman, and the auditor must act as their clerk. 
After they are organized they must proceed to canvass and 
estimate the certificate, poll books and tally sheets returned 
by each member of such board. They must carefully pre¬ 
pare and sign a statement of the whole number of votes' 
cast, and the number for and against the appropriation. 

The following form may be used. 

STATE OF INDIANA, \ 

Vermillion County. / s * 

Be it known that on Thursday,-day of-, 1872, 

the undersigned, return judges of the several polls of elec¬ 
tion, held in Helt township, Vermillion county, Indiana, 
on the 25th day of October, 1872, for the purpose of taking 
the votes of the qualified voters of said township upon the 
subject of appropriating money by such township, for the 
purpose of aiding the Evansville, Terre Haute & Chicago 
Bailway Company* in constructing its railroad through said 
township. Said election was held on the 25th day of Oc¬ 
tober, 1872. Having assembled at the court house in the 
town of Newport, in said county, between the hours of 

ten o’clock a. m. and six o’clock p. m. of said-day of 

■-, 1872, J. T., auditor of said county and ex-officio 

clerk of said board being present, acting as such clerk, we 
did then and there select W. P., chairman of said board. 
After organizing, each member of the board produced the 
certificate of the number of votes cast at his precinct at 
said election; also the poll books,* certificate and tally 
sheets, of said election, delivered to him according to law. 
And after a careful examination and comparison of said 
papers, make the following statement: 

The whole number of votes cast at said election, one 
thousand; the number of votes cast for the appropriation 




RAILROADS. 


267 


to the railroad company was six hundred; the number 
against the railroad appropriation was four hundred. 

This-day of October, 1872. 


W. P., Chairman. 



The above form can be used when the township has but 
one voting precinct with but little alteration. 

These certificates must be filed with the auditor of the 
county, who must record them at full length in the record 
of the board of commissioners of said county; and he must 
then carefully file away and preserve the certificate, poll 
books and tally sheets aforesaid. If the majority of the votes 
cast at such election be against the railroad appropriation, 
the whole proceeding stops. But if the majority of the votes 
cast at such election be in favor of the appropriation, the 
board of commissioners must, at the ensuing June session, 
or at their June session after the vote has been taken, grant 
the prayer of said petition, and shall by a special tax of at 
least one-half the amount specified in the petition, but not 
exceeding one per centum upon the real and personal prop¬ 
erty in the township or county, liable to taxation for State 
and county purposes. Before the board will be authorized 
to levy this tax, they must be satisfied that every act that the 
law requires to be done has been performed. Each and 
every step, from the listing of the property by the assessor 
to the levy of the tax by the commissioners, is a separate 
and independent fact. “ All the facts from the beginning 
to the end of the proceeding must exist, and if any mate¬ 
rial link in the chain be wanting, the whole falls to the 
ground for the want of sufficient authority to support it.”(y) 
Every provision and requirement of this act should be car¬ 
ried out literally. The demands of the law are peremptory, 
and must be obeyed. The levy of the tax must rest on 
conditions precedent, and unless those conditions have been 
performed, the board has no authority to levy, and their 

( g) Gowing v. Shuman, 23 Ind., 32; Blackwell on Taxtitles, p. 65. ’Black- 
well on Tax, p. 260. 



268 


THE BOARD OF COMMISSIONERS. 


act, under such circumstances, would be absolutely void.(A) 
The board must make the first levy at the ensuing June 
session, and the second levy at their June session next fol¬ 
lowing their first levy; for they can make them at no other 
time. They can levy no more than one per centum at a 
time upon the real and personal property of the county or 
township. The first levy must be equal or greater than one- 
half the amount prayed for in the petition; if it is made 
for an amount less than one-half the amount asked for in 
the petition, it will be void. The whole amount prayed for 
in the petition may be levied the first year, provided that 
amount does not exceed one per centum upon the taxable 
property of the county or township. The residue of the 
tax must be levied at the June session one year from the 
first levy, and it can be levied at no other time. As a gen¬ 
eral rule, where a tribunal is authorized to levy a certain 
per cent, of tax, a levy of a less amount will be valid.(z) 
But this rule is not a safe one to follow in all cases, and the 
board should levy the amount authorized by law, no more 
nor no less. From the peculiar reading of sections one and 
twelve, supra, we have almost come to the conclusion that 
the board has no authority to levy any other amount than 
the one asked for in the petition. It i3 evident they can 
levy no greater amount, and the authority to levy a less 
amount is not well settled by adjudication. If any one of 
the different officers whose duty it is to carry out this act, 
fail to perform their duty, the whole proceeding must fall 
to the ground. Unless every requirement of the law has 
been strictly complied with, the board should refuse to make 
the levy. The members of the board may sometimes become 
much interested in the building of a railroad, and in their zeal 
to accomplish their object, they may sometimes be inclined 
to levy a tax whether it is authorized by law or not; but 
they should remember that their duties are marked out by 
the statute, and that all their acts which are not authorized 
by the law are absolutely void. They should not usurp 
authority or violate their official oaths merely for the sake 


(A) Blackwell on Tax, p. 260. (i) Blackwell on Tax, p. 16. 



RAILROADS. 


269 


of gain. They should always say, under such circumstan¬ 
ces, we can act only as the law directs; and unless the 
necessary steps have been taken to give us jurisdiction in 
the case, we will make no levy. When the legislature 
fixes a way for the people to be taxed, they can be taxed in 
that way only. 

If the levy of the tax has been made without authority, 
the collection of the same can be enjoined by the higher 
courts of the State. 

The board of commissioners, after the tax so levied, or 
any part thereof, shall have been collected, may take stock 
in such railroad company, from time to time, in the name 
of the proper county or township, as the case may be, and 
pay therefor when the money is collected. They may donate 
the money raised by taxation to such railroad company for 
the purpose of aiding in the construction of such railroad, 
and they can pay the same over from time to time. They 
may use any money in the county treasury not otherwise 
appropriated to pay for their stock, or to make their dona¬ 
tion, provided they refund the same when they collect the 
special tax. But they can make no donation until the rail¬ 
road to be constructed shall have been permanently located, 
and work done on the same by the company equal to the 
amount of the donation then made. But they can only 
pay over one-half of the money until after the road is com¬ 
pleted and the iron laid upon the road, and a train of cars 
shall have passed over the entire length thereof in such 
county or township, a3 the case may be. After the railroad 
company has completed its work through the township or 
county making such appropriation, the railroad company 
or any citizen may compel the board of commissioners, by 
mandamus, to pay over the money to the company. 

If the railroad fails to commence work in one year from 
the time of the levy of the tax, or shall fail to complete 
their road ready for use within three years from the time 
of the levy, they shall forfeit their right to such donations; 
but the board may, for good cause shown, give further time, 
not to exceed one year, in which to complete the same. 


270 


THE BOARD OF COMMISSIONERS. 


NOTES. 

In the Lafayette, Muncie, and Bloomington Railroad Company and Another 
vs. Gerger, 34 lnd. p. 185 . 

Constitutional Law.—Legislative Power. —When the constitution of a State 
vests in the General Assembly all legislative power, as does ours, (article 5 , 
section 1 ), it is to be construed as a general grant of power, and as authorizing 
such Legislature to pass any law within the ordinary functions of legislation, if 
not delegated to the federal government or prohibited by the State constitution. 

Same. — Construction. —Constitutions are to receive a strict construction, and 
acts of the Legislature are to be liberally construed. 

Same.—“Incorporated Company .”—The words “incorporated company” in 
section 6 of article 10 of the constitution of this State, refer to those associations 
which are created for public benefit, and to which the government delegates a 
portion of its sovereign power, to be exercised for public utility—such as turn¬ 
pikes. John vs. The Cincinnati, Richmond, and Fort Wayne Railroad Company 
and Another. 

Constitutional Law.—Subscriptions to Railroads. — Townships. — Taxes. —The 
State may make internal improvements, directly, or by a corporation, and for 
that purpose, levy and collect taxes, or empower counties and townships to do so, 
and subscribe and pay for stock in a railroad company. 

Same. —The act, approved May 12 th, 1869 , “to authorize aid to the construc¬ 
tion of railroads, by townships and counties taking stock in,” &c., contemplates 
a payment for stock at the time of subscription, and not the creation for a debt 
therefor, and is constitutional. 55 Ind. p. 539 . 

In The Detroit, Eel River, and Illinois Railroad Company et al., vs. Daniel 
R. Beaijss. 

Came the parties, by their attorneys, and the court being sufficiently advised 
in the premises, gave the following opinion, and judgment pronounced by. 
Buskirk, C. J. 

The appellees filed their complaint in the court below against the appellants, 
to enjoin the collection of a tax levied in Jefferson township, Miami county, 
Indiana, in pursuance of a vote of the citizens of said township to aid in the 
construction of the Detroit, Eel River, and Illinois Railroad through said town¬ 
ship, a temporary injunction restraining the collection of said tax was granted by 
the court below, from which this appeal was taken. The following are the 
reasons set out in the complaint why the said tax should be enjoined: 

1 . That neither the petition which was presented to the board of commis¬ 
sioners, or notice given by the auditor, properly specified the amount to be ap¬ 
propriated by said township to aid in the construction of said railroad. 

2 . That no legal notice was given.of the said vote or of the time and place 
of holding said election. 

3 . That the certificate of the sheriff as to the posting up of said notices of 
said election in said township was defective, because it did not specify the 
places at which he posted them, so that it could be ascertained whether they 
were public places. 

4 . That the notices were not posted up in ten public places in said town¬ 
ship. 

5. That there was a large portion of the ballots which were cast and counted 


RAILROADS. 271 

in favor of said appropriation, were written for the railroad instead of " for the 
railroad appropriation.” 

6 . That there was no registry of the qualified voters of said township at said 
election, nor was the last preceding registry before said board of election. 

7 . That the tax was levied in July, 1871 , when it does not appear that there 

was a legally called session of the board, and when the-of May 12 th, 1869 , 

required that said tax should be levied at the regular June session of the board. 

8 . That no work had been done in the said township in the construction of 
said road within one year from the time of levying the special tax. 

We will dispose of the objections urged in the order in which they are stated. 

Did the petition specify the amount of money which was to be appropriated 
to aid in the construction of said road ? The amount asked for in the petition, 
and that stated in the notice, was “ two per cent, upon the taxables of said 
township.” 

The first section of said act reads as follows: Section 1 . Be it enacted by 
the General Assembly of the State of Indiana, that whenever a petitition shall 
be presented to the Board of Commissioners of any county in the State, at any 
regular or special session thereof, signed by one hundred or more freeholders of 
said county, asking said board to make an appropriation of money to aid a rail¬ 
road company named in said petition, then duly organized under the laws of 
this State, in the construction of a railroad in or through such county, or when¬ 
ever such a petition shall be presented to such Board of Commissioners, as 
aforesaid, signed by twenty-five freeholders of any township of such county, ask¬ 
ing such township to make an appropriation of money to aid a railroad com¬ 
pany named in such petition, and then duly organized as aforesaid, in construct¬ 
ing a railroad in or through such township by taking stock in or donating 
money to such company to an amount specified in such petition not exceeding, 
however, two per centum upon the amount of the taxable property of such county, 
or township, as the case may be, on the tax duplicate of the county delivered to 
the treasurer of the county for the preceding year, it shall be the duty of such 
Board of Commissioners, after being satisfied that such petition has been prop¬ 
erly signed by the required number of freeholders of such county or township, 
as aforesaid, to cause the same to be entered at full length upon their record. 

The third section of said act reads as follows: 

“ Sec. 3 . The auditor of said county shall immediately give notice, to be 
published at least four weeks successively in some newspaper of general circula¬ 
tion in the county, or, if none be published therein, some newspaper most con¬ 
venient thereto, and by private handbills, to be posted in three public places in 
each township of the county where a county appropriation is prayed for, or in 
ten public places in the particular township where a township appropriation is 
prayed for in the petition. Said handbills shall be posted by the sheriff of the 
county, three weeks before the day fixed for the taking the vote of the county or 
of the particular township named in said petition, as the case may be, and the 
same, as well as said newspaper publication, shall notify the qualified voters of 
the county, or of the 'particular township, as the case may be, that the polls will 
be opened, on the day fixed by the order of the board of commissioners, at the 
several voting places in the county, or in the township, as the case may be, to 
take the votes of the legal voters thereof upon the subject of such county or 


272 


THE BOARD OP COMMISSIONERS. 


township aiding in the construction of the railroad named in such petition, to an 
amount to be specified in such notice; and the auditor of the county shall make 
his official certificate that said notice was published, and said sheriff shall make 
his like certificate that said handbills were posted as required by this act, which 
certificate shall be entered upon the record of the board of commissioners, and 
shall be sufficient evidence of the facts therein stated.” 

It will be observed that the first section requires that the petition shall specify 
the amount to be appropriated, not, however,.exceeding two per centum upon 
the amount of the taxable property of such county or township on the tax dupli¬ 
cate of the county, delivered to the treasurer of the county for the preceding 
year. It is required by the third section that “ the amount shall be specified in 
the notice.” The petition did not specify any amount. It asked for two per 
cent, upon the taxable property of the township. Two per cent, upon the tax¬ 
able property of the township is a specific proposition, but not a specific amount. 
The amount of taxables varies every year, and the amount would not be the 
same in any two successive years. No year is mentioned in the petition, and it 
might mean the current year or the year preceding, upon which the tax had been 
recently paid. This uncertainty is fatal. It is the amount that is required to be 
specified, and not the per centum. In the first section of the said act, a clear 
distinction is made between the amount and the per centum, for it is provided 
that the amount shall be specified, which amount shall not exceed two per 
centum of the taxable property of the preceding year. 

It is maintained by the appellants, that “ that is certain which can be made 
certain.” We do not think, from the language used in the first and third sections 
of the act under consideration, that the legislature intended that the tax payers 
should be required to go to the tax duplicate and ascertain the amount of the 
taxables, and then make a calculation to ascertain the amount to be assessed. 
The amount is imperatively required to be specified, but there is a limitation 
placed upon the board, by providing that such amount shall not exceed two per 
cent, of the taxables upon the duplicate for the preceding year. When the 
amount of the appropriation is stated, in the petition and notice, in dollars and 
cents, the tax payers will know the extent of the burden they are asked to 
assume. The State, ex. rel. Lexington, &c., R. R. Co. v. Saline County, 215 
Mo. 242 ; Neal vs. Saline County, 48 Mo. 390 . 

It was said in Adrian vs. McCaffrety, 2 Robeson (N. Y.), 155 , that where a 
statute, in effect, strips an individual of his property or title, or which in any way 
affects the same, its requirements must be strictly complied with, to enable parties 
purchasing to acquire a title. Moreover, the requirements of the statutes are the 
very conditions upon which the owner is divested of his title and property; and 
it does not lie with the court to consider whether the statute was reasonable, or 
whether the notice in the case nearly complied with the act, but whether the 
provisions of the statute have been literally and strictly pursued. The two cases 
(Culver vs. Hayden, 1 Ver. R. 359 , and the cases therein cited, and Spear vs. 
Ditty, 9 Ver. R. 282 ,) cited *in the plaintiff’s points, establish this view. See 
Blackwell on Tax Titles, 213 . 

The cases of Wheeler vs. Mills, 40 Barb. 644 , and Broner vs. Eastman, 50 
Barb. 639 , are very much in point, and fully sustain the view above expressed. 
We are of the opinion that the petition and the notice were fatally defective, for 


RAILROADS. * 273 

not specifying the amount of the appropriation. This disposes of the first and 
second objections. * 

As to the third objection, we are of the opinion that the certificate of the sheriff 
that he had posted up the notices in ten public places in the township, is prima 
facie evidence of the fact. While it would be the better practice for the sheriff, 
in his certificate, to state at what places he posted the notices, we do not think 
that the certificate would be defective for the failure to so state. 

We are of the opinion that the fourth objection, if true in fact, would be fatal 
to the validity of the election. As the third section imperatively requires that the 
notice must be posted in ten publie places in the township, there must be a strict 
and rigid compliance with this plain and undoubted requirement of the statute. 

We are of the opinion that there is nothing in the fifth objection. It is pro¬ 
vided in the second section of said act that “ the judges and inspectors of elec¬ 
tions shall be governed in the reception of votes by the laws then in force 
regulating general elections. No special registry shall be required as preliminary 
to the election prescribed by this act, but the last preceding registry shall govern.” 

Such an irregularity at a general election would not effect the validity of the 
election. See sections 14 and 15 of the ac£ for contesting elections, 1 G. & H., 
318 ; Gass v. The State ex rel. Clark, 34 Ind., 425 . There is nothing in the 
sixth objection. The vote was taken on the 7 th day of August, 1869 . The 
registry law was repealed on the 13 th of May, 1869 . 3 Ind. Stat. 235 . We 

are of the opinion that the seventh objection is valid, and is fatal, to the validity 
of the levy of the special tax. The twelfth section of said act reads as follows : 

“ Sec. 12 . If a majority of the votes cast should be in favor of such railroad 
appropriation, the Board of County Commissioners, at their ensuing regular June 
session, shall grant the prayer of said petition, and shall levy a special tax of at 
least one-half the amount specified in said petition, but not exceeding one per 
centum upon the real and personal property in the county or township, as the 
case may be, liable to taxation for State and county purposes, which tax shall be 
collected, in all respects, as other taxes are collected for State and county pur¬ 
poses, and if the sum as levied shall not be equal to the amount specified in said 
petition, then the residue thereof shall be levied by said Board of County Com¬ 
missioners at the June session of the following year.” 

The above section provides that the Board of County Commissioners, at their 
ensuing regular June session, shall grant the prayers of the said petition, and 
shall levy a special tax of at least one-half of the amount specified in said 
petition. It is also provided in the latter clause of said section, “And if the 
sum so levied shall not be equal-to the amount specified in said petition, then 
the residue thereof shall be levied by said Board of County Commissioners at the 
June session of the following year. 

We think that it is very manifest that the legislature intended that the levy 
should be made at the regular June session, and at no other time. In our opin¬ 
ion it is mandatory and not directory. If it should be ascertained within a month 
after the first levy at the regular June session that the sum levied was not equal 
to the amount specified in the petition, the residue could not be levid at any in¬ 
termediate regular session. It can only be done at the next regular June session. 
There is no power given to make the levy at any other time than at the regular 
June session. 


274 


THE BOARD OF COMMISSIONERS. . 


It was by this court, in English et al. v. Smock et al., 34 Ind., 115, held that 
the Board of Commissioners is a court of inferior and limited jurisdiction, and 
it is well settled, both in principal and authority, that where statutory provisions 
are conferred on such a tribunal, and a mode of executing those powers is pre¬ 
scribed, the course pointed out must be strictly pursued or the acts of such 
court will be coram non judice and void. When such a court has been en¬ 
trusted with the exercise of discretionary powers, and the acts done are within 
the power conferred, apd have been performed in good faith, then no court pos¬ 
sesses the power to interfere with or control such discretion. 

This leaves for our consideration and decision the eighth objection. The eigh¬ 
teenth section of said act reads as follows: 

“Sec. 18. A failure on the part of the railroad company to commence work 
upon the railroad in said county within one year from the levying of such tax, 
or failure to complete such railroad ready for use within three years from such 
levying, shall forfeit the rights of such company to such donation, unless the 
County Commissioners, for good cause shown, shall give not to exceed one year 
further time in which to complete the same, and the money raised by said special 
tax shall go into the general fund of the county or township, as the case may 
be, and used accordingly.” 

The railroad company for answer denied the truth of the allegations con¬ 
tained in the complaint in reference to the failure of the company to commence 
work upon the railroad within said township within one year from the levying 
of the tax. Affidavits and counter affidavits were filed. An affidavit was filed 
by the appellees, which was made by eighteen citizens and taxpayers of said 
township, in which it is stated that for more than one year after the levying of 
such railroad tax, to-wit: for more than one year after the 15th of June, 1870, 
said railroad company failed to commence any work on said road within said 
county of Miami, norwas any work commenced on said railroad from said 15th of 
June, 1870, until the 1st day of March, 1872, in said county of Miami. Said 
affidavits further say, as they are informed, and believe, one Harrison Grimes, a 
resident and large land holder of Union township, in said Miami county (which 
township is not subject to any such railroad tax, being on the line of said railroad 

and interested in the same) on or about the-day of-1871, by a 

coalition with the officers and stockholders of said railroad company, and for the 
purpose of evading the provisions of section 18 of the railroad act of May 12th, 
1869, and pending a forfeiture of said tax west on the line where he supposed 
said railroad line would run, and used a plow or scraper less than half of one 
day; that at the time there had been no letting of the work on said road; that said 
line of road was not defined, no stakes had been set by the engineer, and the 
work performed was under no contract for the construction of said road, and 
said work was of no value or benefit in the construction of said railroad, and 
done for no other purpose than as a pretense and to evade a requirement of law— 
all of which facts as herein stated are substantially true as said affiants of their 
own personal knowledge and from the best information believe true. 

The appellants filed the affidavits of the said Harrison Grimes, who, upon 
oath, states that he is a resident of Miami county, Indiana, and has been for the 
last five years; that he was employed to work, and did work, for the Detroit, 
Eel River and Illinois Railroad between the 1st and 6th days of June, 1871, at a 



RAILROADS. 


275 


point on said railroad within the township of Jefferson, in said county of Miami; 
that said work was done by him and others in his employ, and was done in 
grading the road bed of said railroad, and preparing it for the ties; that said 
railroad company paid him for said work, and he gave a receipt to the company 
for the same; that said work is now progressing rapidly on said railroad, and 
bids fair to be completed within the next six months. R. R. Charles and Samuel 
Lewis filed affidavits in substance the same as that of Mr. Grimes. 

It will be observed that Mr. Grimes does not controvert the truth of the state¬ 
ments in the affidavits filed by the appellees; “ that at the time there had been no 
letting of the work on said road;” that no stakes had been set by an engineer, 
and that the work performed was under no contract for the construction of said 
road. Mr. Grimes in his affidavits studiously avoided stating how much work 
he did or how much he received from the company for such work. He seems 
to be equally cautious in his statement that the work was progressing rapidly. It 
would have been more to the purpose, and far more satisfactory, if he had stated 
what progress had been made in the construction of said road in Miami county, 
and especially in Jefferson township, in said county. We are required to give a 
reasonable and common sense construction to the 18th section, and one thpt will 
fairly carry into effect the legislative intention. 

It is further provided that a failure to commence work within one year from 
the time of levying the special tax shall work a forfeiture unless the time is ex¬ 
tended by the order of the Board of County Commissioners. 

What was intended by the phrase “to commence work?” We think it means 
that the company shall commence work in good faith and with the honest pur¬ 
pose of constructing the road within a reasonable time, taking into consideration 
the extent and character of the work to be done. The most favorable view that 
can be taken for the company is that Grimes worked from the 1st to the 6th of 
June. This failure to state how many hands he had employed, and how many 
days and hours they work, creates a very strong presumption that the time stated 
in the affidavit filed by the appellees was the true time. 

We know that railroad companies do not commence the construction of their 
railroad beds until there has been a survey of the route, until the exact location 
of the line has been fixed and grades established. We cannot regard the work 
done in Jefferson township as any compliance with undoubted requirements of 
the eighteenth section of said act. 

We entertain no doubt that the levy of the special tax was illegal and void, 
and that the decision of the court below was correct. 

The judgment below is affirmed, with costs. 

Worden, J., concurs in the judgment, but is of the opinion that the petition 
and notice sufficiently specify the amount to be appropriated. 

It is, therefore, considered by the court that the judgment of the court below, 
in the above entitled cause, be in all things affirmed, at the costs of the appel¬ 
lants, all of which is ordered to be certified to said court. 

And it is further considered by the court that the appellees recover of the ap¬ 
pellants the sum of-dollars and-cents for their costs and in this 

behalf expended. 

In the case of Garrigus et al. v. The Board of Commissioners of Parke- 

19 




276 


THE BOARD OP COMMISSIONERS. 


County, 39 Ind. 68, appeal from the Parke Circuit Court, Buskirk, C. J., says: 

The appellants filed a complaint in the court below, to perpetually enjoin the 
collection of a tax that was levied by the Board of Commissioners of Parke county, 
to aid in the construction of the Indiana and Illinois Central Railroad and the 
Indiana Northern and Southern Railroad, which special tax was levied in pursu¬ 
ance of a vote that was taken in said county on the 13th day of November, 1869. 

A demurrer was sustained to the complaint, to which ruling a proper excep¬ 
tion was taken, and, the appellants refusing to plead further, final judgment was 
rendered for the appellee, from which judgment the appellants have appealed to 
this court, and have assigned for error the sustaining of the demurrer to the 
complaint. 

The petition which was presented to the Board of County Commissioners was 
.as follows: 

To the Hon. Board of -Commissioners of Parke County , Indiana: 

“ The undersigned, freeholders of said county, would respectfully petition 
your honorable board to make an appropriation of money to aid the Indiana and 
Illinois Central Railroad and the Indiana Northern and Southern Railroad Com¬ 
pany, now duly organized under the laws of the State of Indiana, in the con¬ 
struction of said railroads in said county, by taking stock in, or donating money 
to, said companies, in the amount of two hundred thousand dollars in said 
county, one-half of the amount appropriated to be given to each company, not 
exceeding, however, two per centum upon the taxables of said county, on the 
condition, as to the said * Indiana Northern and Southern Railway Company,’ 
that they commence the work on their road between Brazil, in Clay county, and 
Attica, in Fountain county, within six months from the day of election mak¬ 
ing the appropriation, and that said company complete the building of said road 
within two years from said day, and that the town of Rockville, in said county, 
is made a point, and said road run within one-half mile of the town of Bridge¬ 
town, in said county.’ 

Various objections are urged against the validity of the levy of the special 
tax, but the conclusion at which we have arrived renders it unnecessary for us 
to consider and determine any of the questions that have been argued with so 
much ability by the learned counsel engaged in this cause, but one, and that is 
stated in the complaint, as follows: 

** Second. Because the aforesaid petition indicates and asks an appropriation 
to two railroad companies, and because said election was holden in such a man¬ 
ner that the said voters could not vote for or against an appropriation to either 
of said railroad companies without voting for or against both.” 

The question is now presented for the first time, under the act of May 12th, 
1869, whether it is legal for the Board of Commissioners of a county to submit to 
the voters of a county a proposition to vote for an appropriation in aid of two 
or more companies, when the question is so submitted that the voters cannot vote 
for one and against the other, but must vote for both or against both. 

The question is one of great practical importance to the people of the State, 
and we have given it very thoughtful and mature consideration. We have been 
greatly aided by the very able and exhaustive oral argument with which we have 
been favored. 

It is maintained by the appellants that a vote for or against two railroad com- 



RAILROADS. 


277 


panies is illegal and void for two reasons: first, that it is manifest from the lan¬ 
guage of the act under consideration that it was the intention of the legislature 
that the vote should be taken for or against an appropriation to aid in the con¬ 
struction of one railroad ; second, that a vote which is taken for or against two 
railroads, where the voters do not have the right to vote for one and against the 
other, is against public policy, for the reason that it effects a combination of op¬ 
posite and diverse interests, and produces a system of log-rolling, by which the 
proposition to aid two roads is carried, when, if the vote had been taken separ¬ 
ately on each proposition, both might have been defeated, or one might be 
carried and the other defeated. 

It is maintained by the appellee that the title of the act in question should be 
considered, with the view of ascertaining the intention of the law-makers; and 
that the title of said act being in the plural, the singular number used in the 
body of said act should be construed to refer to the plural. 

It is further maintained that a vote for or against aid to two railroads is not 
against public policy, and will not prevent a fair and unbiased expression of the 
popular will; and that, as the act limits the amount which may be levied, in 
any two years, to two per centum upon the taxable property, there is no danger 
that unreasonable and oppressive burdens will be placed upon the taxpayers. 

It will appear from an examination of the act of May 12th, 1869, that where 
reference is made to the aid of railroads, it is invariably in the singular number. 
Nowhere in the body of the act is reference made to railroad companies. The 
following expressions will be found in the act: in the first section, “ to aid a 
railroad company;” “to such company.” In the third section will be found, 
“ aiding in the construction of the railroad named in such petition.” In the 
sixth section is the following: “to aid such railroad company.” In the seventh 
section is this expression: “the appropriation to the railroad company.” In the 
twelfth section occur these words: “ such railroad appropriation.” The propo¬ 
sitions which are submitted to the voters are stated thus: “ For the railroad ap¬ 
propriation;” “Against the railroad appropriation.” 

The following rule of interpretation is stated by Smith, in his work on Con¬ 
stitutional and Statutory Construction, sec. 545, p. 688: “In the interpretation 
of statutes, if the words used express clearly the sense and intention of the law, 
they must always govern. For, as wo have seen, it is not permitted to interpret 
what is plain and manifest, as it stands in no need of interpretation. When an 
act is conceived in clear and precise terms—when the sense is manifest, and 
leads to nothing absurd, there can be no reason to refuse the sense which it 
naturally presents to the mind.” 

But it is earnestly maintained by the learned counsel for the appellee, that 

words importing the singular number only, may also be applied to the plural 
of persons and things.” Sec. 798 of the code, 2 G. & H. 336. 

This construction is only to be given to the words of a statute or instrument, 
when the plain and evident sense and meaning of the words, to be derived from 
the context, render such a construction necessary to give effect to the intention 
of the makers of the statute or instrument. We do not think we would be justi¬ 
fied in placing such a construction upon the statute under consideration. Full 
effect and force can be given to the act without such a construction. 

It is also maintained that the title of a statute may be a guide to the intention 


278 


THE BOARD OF COMMISSIONERS. 


of the law-makers, and in support of this position reference is made to the fol¬ 
lowing authorities: Smith vs. The State, 28 Ind. 321; The United States vs. 
Palmer, 3 Wheat. 610; Lessee of Burgett vs. Burgett, 1 Ohio, 469; Eastman v. 
McAlpin, 1 Kelly, 157; Cohen vs. Barrett, 5 Cal. 195. 

The above proposition is correct, with this additional qualification, “ where 
the statute appears to be ambiguous or doubtful.” I Cooley’s Blackstone, 59. 

It was said by Marshall, C. J., in The United States vs. Palmer, supra , that 
“ the title of an act cannot control its words, but may furnish some aid in show¬ 
ing what was in the mind of the legislature.” 

It was also said in The United States vs. Fisher, 2 Cranch, 386 : “ On the 

influence which the title ought to have in construing the enacting clauses, much 
has been said; and yet it is not easy to discern the point of difference between 
the opposing counsel in this respect. Neither party contends that the title of an 
act can control plain words in the body of the statute; and neither denies that, 
taken with other parts, it may assist in removing ambiguities. Where the intent 
is plain, nothing is left to construction:” 

Judge Cooley, in his work on Constitutional Limitations, page 141, states the 
law the same as the above, but adds: “ Titles to legislative acts, however, have 

recently, in some states, come to possess very great importance, by reason of 
constitutional provisions, which not only require that they shall correctly indi¬ 
cate the purpose of the law, but which absolutely make the title to control, and 
exclude everything from effect and operation as law which is incorporated in the 
body of the act, but is not in the purpose indicated in the title. These provi¬ 
sions are given in the note, and it will readily be perceived that they make 'a 
very great change in the law.” 

But it is not said by Judge Cooley, or any other writer* that we know of, that 
the constitutional provisions in reference to the titles of an act have so changed 
the rules of construction that the title may be looked to when the words of the 
statute are plain and unambiguous; and we do not think that such rules have 
been so changed. The only effect of such provisions in reference to titles of an 
act is to give greater weight and consideration to the title in ascertaining “ the 
mind of the legislature,” than was formerly given to titles where the language 
of the act is ambiguous and doubtful. 

The title of the act under consideration is as follows : “ An act to authorize 

aid to the construction of railroads by counties and townships taking stock in 
and making donations to railroad companies.” 

The constitution of Indiana provides, that “ every act shall embrace but one 
subject and matters properly connected therewith; which subject shall be ex¬ 
pressed in the title. But if any subject shall be embraced in an act, which 
shall not be expressed in the title, such act shall be void only as to so much 
thereof as shall not be expressed in the title.” Sec. 19, article 4, 1 G. & H. 39. 

The subject-matter of said act is aid to railroad companies. Under our con¬ 
stitution, all laws have to be general wherever a general law can be passed. A 
local or special law on the subject of aid to a railroad company, would have 
been unconstitutional and void. And as the subject-matter of the act must be 
expressed in the title, the title of the act in question was made broad and com¬ 
prehensive enough to embrace and apply to all railroad companies in the State. 
But it does not result that more than one railroad company can apply for such 


RAILROADS. 


279 

aid at the same time and in the same proceeding, where the vote must be for or 
against both. As we have seen, the title embraces all the railroad companies 
organized in the State, while the body of the act provides for separate and dis¬ 
tinct proceedings on the part of the several railroad companies in obtaining aid 
in the construction of their respective roads. All are entitled to the benefits of 
the act, but each must receive the aid separately. 

We are very clearly of the opinion that the plain and obvious purpose of the 
legislature, to be derived from the plain and unambiguous language of the act, 
was, that the voters of a county or township should have the privilege of voting 
for or against any proposition that might be submitted to them, without being 
compelled to vote for or against some other proposition that they would not 
have freely and of their own choice voted for. 

The views above expressed are based upon the wording of the act, and what 
seems to us to have been the intention of the Legislature. We are not without 
authority on the proper construction of the act in question. The act of May 
12th, 1869, was copied mainly from a statute of Illinois, and the Supreme Court 
of that State have placed a construction upon such statute. It is well settled 
that where a* statute is borrowed from the statutes of another State, the construc¬ 
tion placed upon such statute by the'courts of such State is entitled to great 
weight and consideration. 

The Supreme Court of Illinois, in the case of Supervisors of Fulton County 
vs. The Mississippi and Wabash R. R. Co., 21 Ill., 338, placed a construction 
upon said statute. The court say: “Another objection has been made by com¬ 
plainants which we deem necessary to notice now. It is as to the manner in 
which this question of subscription to the stock of this road was submitted to the 
vote of the people.” The court, after quoting two sections of the statute, pro¬ 
ceed to say: “ The order made by the board of supervisors of Fulton county, 
under this law, does not seem to be in strict conformity to it. The law evi¬ 
dently contemplates a vote for or against subscription, to some one company only, 
specifying the company. The order is for a subscription to the Mississippi and 
Wabash River Railroad Company, and the Petersburg and Springfield Railroad 
Company, seventy-five thousand dollars to each. 

“ This is not only not pursuant to the law, but is manifestly unfair. All elec¬ 
tions, as well for measures as men, should be perfectly free, uninfluenced by any 
consideration, other than the merits of the individual man or measure proposed. 
We boast of the freedom of the elective franchise; should we not strive to swell 
the boast by its purity also ? A single, isolated measure, such as a railroad, may 
net unite a majority of a county to whom it is proposed. It may favor, if con¬ 
structed, one portion of a county more than another, and thereby be prevented 
from receiving a clear majority vote, such as the law clearly contemplates shall 
be given. Is it fair, in order to accomplish this object, to attach another meas¬ 
ure to it, to be voted on at the same time, which may benefit the opposing por¬ 
tion of the county ? The law never intended that two roads should be coupled 
together, and the people forbidden to vote for one if they did not also vote for 
the other, the one road being really a bribe offered for votes for the other. The 
truth is, the voters of Fulton have never had an opportunity to vote, and never 
have voted this subscription, for the question was si no time distinctly before 


280 


THE BOARD OP COMMISSIONERS. 


them. The question before them was, will you vote for a subscription to two 
roads ? Neither road has received the approving vote of the people, and until 
that is done, until the naked, single question shall be fairly presented to those 
voters, they ought not to be bound, or injuriously affected, by any such jockey¬ 
ing management and log-rolling. By this system, condemned as it has always 
been by the moral sense as well as sense of justice of the whole country, it should 
at this day find no favor in the courts. We do not hesitate to say, this propo¬ 
sition to vote on two roads at the same time was not authorized by the law, and 
is a fraud on the people. 

“ This tacking one measure upon anohter, is unjust in another view, as it gives 
the, county court power to weigh down a popular single measure, by attaching 
odious measures to it, and thus virtually depriving the people of their right to vote 
on the one measure, the success of which would greatly promote their interests. 

“ Such maneuvering should be condemned everywhere, as unfair and unjust, 
and so we regard it.” 

The ruling in the above case was followed in two subsequent cases in that 
court, The People, etc., vs. County of Tazewell, 22 Ill. 147; Clarke vs. The 
Board of Supervisors of Hancock County, 27 Ill. 305, and such may be re¬ 
garded as the settled construction of the law of that State. 

The State of Iowa has a law very much like ours. The Supreme Court of 
that State has placed a construction upon the manner of submitting the vote to 
the people. In the case of McMillan vs. Lee County, 3 Iowa, 311, the court 
say: “ There is still another objection which we must regard as equally fatal to 

the validity of the proceedings, on which the authority claimed by the county 
judge in this instance, is based. Every proposition for the borrowing or expen¬ 
diture of money by a county, and for the levy of a tax to pay the same, receives 
its vitality as a law from the majority of the votes of the people cast in its favor. 
Such being the case, we think it is evidently the policy of the law, no less than 
its spirit and intention, that the vote of the people should be permitted to be cast 
for or against the propositions submitted, with no restraint upon the free expres¬ 
sion of their choice. We have said that in our opinion, the law contemplates 
unity and distinctness in the question authorized to be submitted, in contradis¬ 
tinction to the uniting of several questions in the same proposition, or the incum¬ 
bering of any proposition with conditions not required or not permitted by the 
statute. The proceedings coming under our notice in this cause present a most 
forcible illustration of the wisdom of what we deem to have been the policy of 
the statute. The people were not called upon, nor were they permitted, to de¬ 
cide by their votes whether the county of Lee should borrow money for one 
purpose or object. No single question was submitted to their votes to be deci¬ 
ded upon its own merits, or by the judgment of the people in its favor. Nor 
were the three propositions submitted at once, to be voted upon and to be deci¬ 
ded upon, either singly or in the aggregate^ No question submitted was per¬ 
mitted to stand by itself, or to take effect upon the decision ©f the people in its 
favor. On the contrary, while it is contained in the proposition, that a majority 
of the votes cast in favor of the subscription to the stock of either company, 
should be considered its adoption by the people, it is also further contained and 
declared, ‘ that the said subscripticn shall not be made to either of said compa¬ 
nies, unless the vote shall be carried in favor of each and all of them.’ 


RAILROADS. 


281 


“We cannot regard this in any other view than as an attempt to impose a con¬ 
dition upon the taking effect of the vote of the people adopting a proposition 
submitted to them, wholly unauthorized by the law. They were entitled to have 
the question of the county taking stock in either of these railroad companies 
submitted to their decision, unincumbered by any such condition or proviso. To 
make the success of any one proposition depend upon the adoption of all, was 
to take from the expression of the will of a majority of the people that essential 
validity intended by the law to be imparted to it.” 

The above decisions are very much in point, and greatly strengthen and sup¬ 
port the views.expressed by ns. We regard the reasoning as wise and sound, 
and that the conclusions reached are in accordance with the theory and genius 
of our form of government. 

There was much discussion, at the argument, as to the true rule of construc¬ 
tion which should be applied to the act under consideration. The one party con¬ 
tended that the act should receive a strict construction, while the other insisted 
upon a liberal construction. There is in the State of New York a statute very 
similar* to ours, differing only in matters of detail. The Court of Appeals in 
that state recently laid down the rules of construction that should be applied to 
such laws, which meet with our hearty approval. 

In The People v. Smith, 45 N. Y. 772, the court say: “The power sought 
to be delegated to a portion of the taxable inhabitants of a municipality to bur¬ 
den and charge the property of all, and subject it to taxation for a purpose 
foreign to those for which local governments are organized, and with a view to 
contingent benefits, in respect to which men may differ in opinion, and in aid of 
works which in most instances will more largely benefit some than other portions 
of the district, alike and equally charged, is one of grave importance, seriously 
affecting the rights and pecuniary interests to the citizen, and can only be exer¬ 
cised in strict conformity to, and by a rigid compliance with, the letter and spirit 
of the act conferring the authority. Nothing can be taken by implication, and 
the act, as it imposes a burden upon the public, and in a manner deprives the 
owner of the full control and disposition of his property, by giving to others the 
power to encumber it, should be strictly construed in favor of the rights of 
property. 

It is again said by the court: “ While it is for the legislature to decide upon 
the wisdom and expediency of the enactment of a law, and the province of the 
court is simply to interpret the act and give it effect according to the intent of 
the legislature, a statute in derogation of common right will not be extended by 
implication, but its operation and effect will be confined to cases within the ex¬ 
press language employed, giving it its ordinary signification, in the absence of 
any evidence that the legislature intended to use it in a different sense.” 

We are very clearly of the opinion that the court below erred in sustaining the 
demurrer to the complaint. 

The judgment is reversed, with costs; and the cause is remanded, with direc¬ 
tions to the court below to overrule the demurrer to the complaint, and for further 
proceedings in accordance with this opinion. 


282 


THE BOARD OP COMMISSIONERS. 


CHAPTER XII. 

NEW COUNTIES. 

The Formation of New Counties—IIow done . 

The act approved March 7 , 1857 , provides “that when¬ 
ever a majority of the legal voters, to be affected thereby, 
in any district embracing an area of not less than two hun¬ 
dred square miles, shall desire the formation of a new coun¬ 
ty, and by written requests petition the Boards of Commis¬ 
sioners of the several counties to be affected by the forma¬ 
tion of said new county, and shall designate in such peti¬ 
tion the name of such new county—the boundaries of such 
proposed county—which shall be in the form of a square 
as nearly as the character of the territory out of which said 
new county is to be formed will permit, and which petition 
and qualification of the signers thereto shall be verified by 
the oath or oaths of competent witnesses, the said boards 
shall appoint each a committee of three resident freehold¬ 
ers in each county of the district embraced in such change 
who shall form a Board of Commissioners to lay off’ and 
establish the boundaries of the proposed county, conform¬ 
ing to the lines and boundaries named in said petition, and 
shall report the same to such Board of Commissioners of 
the several counties affected by the location of the said new 
county at the next or some subsequent session, and upon said 
report being made the Board of Commissioners of the said 
several counties aforesaid shall enter upon their order books 
respectively an order establishing the boundaries of said new 
county, which shall be by them filed in the office of the Sec¬ 
retary of State; a majority of the commissioners so appoint¬ 
ed as aforesaid shall constitute a quorum to transact busi¬ 
ness devolving upon said commissioners under this act.” 
But it is provided that no county now organized which shall 
contain a greater area than four hundred square miles 
shall be reduced below that number of square miles, and no 


NEW COUNTIES. 283 

county containing less than four hundred square miles shall 
be further reduced. (o) 

Under this law the first thing to be done by the citizens 
of the territory desiring the formation of a new county, 
will be to get up their petition. The petition must give the 
name of such new county, the boundaries thereof, and must 
show that the territory proposed to be organized into a new 
county contains not less than two hundred square miles. 

The following form may be used: 

To the Hon. Board of Co?nmissioners of - county: 

We, the undersigned, legal voters of the counties of- 

and-, in the State of Indiana, would represent to your 

honors that we live in a district of land that now lies in the 
aforesaid counties, which is bounded as follows, to-wit: com¬ 
mencing at-, running-, thence -, thence -, 

thence-to the place of beginning. Said district con¬ 

tains an area of two hundred square miles of territory, and 
is as near in the form of a square as the character of the 
territory will admit. That after the amount of territory 
included in said district is taken from the aforesaid coun¬ 
ties, that they will each contain still an area of four hun¬ 
dred square miles. And believing that it will be to the in¬ 
terest of the people of said district to have the same organ¬ 
ized into a new county, to be called the county of-, 

and to be bounded as aforesaid. We therefore pray your 
honors to appoint a committee of three persons, resident 
freeholders, from the district of land included in the above 

boundaries that now lies in the county of-, to act as 

a part of the Board of Commissioners to lay off and estab¬ 
lish the boundaries of the proposed county. And we will 
ever pray. 

(To be signed by the majority of legal votes of the entire 
territory that is to compose the new county.) 

Address a petition of this kind to the Board of Commis¬ 
sioners of each county to be affected. On the presentation 


(o) I G. & H., p. 191; Act of 1857, p. 25. 








284 


THE BOARD OF COMMISSIONERS. 


of the petition you must establish the allegation of your 
petition by the oath or oaths of competent witnesses. 

The oath or oaths may be in the following form: 

STATE OF INDIANA, \ . 

-County, / 

A. T., W. S. and M. L., being duly sworn, upon their 

oaths say, that they have lived in the county of-, 

State of Indiana, and that they are acquainted with the 
number of legal voters in a certain district of land that now 

lies in the counties of- and -, in the State of 

Indiana, which is bounded as follows, to-wit: Commencing 

at-, running thence-, thence-, thence- 

to place of beginning, and that we have examined the above 
petition and find that it contains the names of the majority 
of legal votes of said district of land. 

A. T. 

W. S. 

M. L. 

Subscribed and sworn to before me, this — day of-, 

18 —. John Short, Auditor. 

We have given the form of an affidavit for witnesses, but 
under the statute the qualification and number of the peti¬ 
tioners may be established by oral evidence. You must 
establish the fact that the new county when established will 
contain an area of two hundred square miles, and that no 
organized county from which any territory composing the 
new county is to be taken will have, after the same is sepa¬ 
rated from it, an area of less than four hundred square miles. 
The number of votes cast for candidates for Congress at 
the last preceding election shall be taken as the number of 
votes ifi the new county. After you have made the neces¬ 
sary proof the board must appoint a committee of three 
from the district of land in their county which is to be in¬ 
cluded in the proposed new county. The committee must 
be composed of resident freeholders, who must meet a like 
number of persons appointed by the Boards of Commis¬ 
sioners from the other difierent counties to be affected; the 











NEW COUNTIES. 


285 


majority of the members constituting the Board of Com¬ 
missioners thus appointed shall constitute a quorum to trans¬ 
act business. The committee thus appointed must be noti¬ 
fied of their appointment within a reasonable time. The 
statute does not expressly state how this shall be done, but 
we think the auditors of the different counties should issue 
their precept to the sheriff of the county commanding him 
to notify the persons composing the board of their appoint¬ 
ment. After they have received notice of their appoint¬ 
ment the law fixes no definite time when they shall meet, 
but says they shall make their report at the next or some 
subsequent session of the Boards of Commissioners of the 
said counties. This statute allows the commissioners an 
extensive latitude, but where no time is fixed by law in 
which a thing is to be done, it must be done in a reasona¬ 
ble time; the commissioners must, therefore, act 'within a 
reasonable time after they have been notified of their ap¬ 
pointment. There is no statute in this State that directly 
authorizes the Board of Commissioners to attach and pun¬ 
ish men who have been appointed by them in accordance 
with law to perform certain specific acts, such as viewing 
of proposed highways, &c., &c., who refuse to act. But they 
may undoubtedly do so. For it is a general rule of law, of 
universal application, that a grant of pdwer to a court or 
judge to award process, includes the power to enforce obe¬ 
dience to that processes) 

The commissioners must, within a reasonable time after 
their appointment, make out and sign a report of their pro¬ 
ceedings to each county board of the different counties to 
be affected. That report should be a correct history of their 
acts. It is their duty, under the statute, to so designate 
the boundary lines of said county that they can be readily 
found. The report may be in the following form: 

To the Honorable Board of Commissioners of - County: 

We, the undersigned, commissioners appointed by the 
Boards of Commissioners of the counties of-and-, 


(j) Taylor v. Maffatt, 2 Blackford, 305; Ex parte Smith v., 28 Ind. 47. 





286 


THE BOARD OF COMMISSIONERS. 


State of Indiana, to lay off and establish the boundaries of 
a certain district of land proposed to be organized into a 

new county, by the name of-; the boundaries of said 

new county prayed for in the petition is as follows: Com¬ 
mencing at--, running thence-, thence-, thence 

-, thence-to the place of beginning, contain¬ 
ing in all an area of two hundred square miles, in the State 
of Indiana, beg leave to report that after a careful exami¬ 
nation of the boundaries of said district, we did lay off and 
establish the boundaries in conformity to the lines and 
boundaries named in said petition. We did set up at the 
south-west corner of said county a large stone, so we set up 
on the southern boundary line of said county stones two feet 
high at intervals of every two miles, so at every other cor¬ 
ner and boundary lines we did likewise, &c., &c. Having 
discharged our duties, we ask to be discharged from our 
said trust. 



Commissioners . 


The Boards of Commissioners of each county mus'. make 
a record of all their proceedings in the premises. And 
after the commissioners have filed their report they must 
enter upon their order book an order establishing the boun¬ 
dary of said new county. They must cause a certified copy 
of this record to be filed with the Secretary of State. It 
will then be the duty of the Governor of the State to ap¬ 
point three persons to locate the county seat, &c., &c.(m) 


BOUNDARIES. 

It is provided by the statute that whenever a majority of 
the legal voters who shall reside in the territory whose ju¬ 
risdiction is proposed to be changed, shall desire to change 
the boundaries of two or more organized counties that may 
lay contiguous, and shall petition the Board of Commission¬ 
ers of said counties, by written petition verified by oath or 

(m) Allen and others v. Hostetter and others, 16 Ind. 15 j The Board of 
Commissioners of Jasper county v. Spider, 13 Ind. 235. 












INTOXICATING LIQUORS. 


287 


oaths of competent witnesses, as to the residence and quali¬ 
fication of such petitioners, designating in said petition the 
line or lines of said proposed change, the said boards shall file 
said petition and continue the cause until the next regular 
meeting, at which time they shall enter upon their order 
books respectively an order changing the boundaries of the 
several counties so as to conform the line or lines designated 
in said petition. After their final order they must cause a 
certified copy of their record to be filed with the Secretary 
of State.(z) 


CHAPTER Xm. 

INTOXICATING LIQUORS. 

License to JRetail Liquor—IIow Obtained. 

The act, approved February 27 th, 1873 , reads as follows: 

Section 1 . Be it enacted by the General Assembly of the 
State of Indiana , That it shall be unlawful for any person, 
by himself or agent, to sell, barter or give away, for any 
purpose of gain, to any person whomsoever, any intoxicat¬ 
ing liquors, to be drank in, upon, or about the building or 
premises where the liquor is sold, bartered or given away, 
for the purpose of gain, until such person or persons shall 
have obtained a permit therefor from the board of commis¬ 
sioners of the county where he resides, as hereinafter pro¬ 
vided. 

Sec. 2 . Any person desiring a permit to sell intoxicating 
liquors, to be drank on the premises, shall file in the office 
of the auditor of the proper county, not less than twenty 
days before the first day of the term of any regular session 
of the board of commissioners of such county, a petition 
in writing, stating therein the building or number, street, 


(x) i G. & H. p. 192; The Board of Commissioners of Warren county v. The 
State on the relation of Ennes and others, 16 Ind. 250. 




288 


THE BOARD OF COMMISSIONERS. 


ward, or township wherein the permission is asked to be 
granted, praying for such permit, and certifying that the 
applicant is a resident voter of such county and a citizen 
of the State of Indiana, and that he is a proper person to 
have and receive such permit, which petition shall be signed 
by the applicant, and also by a majority of the legal voters 
resident in the ward, if it be in a city, or town, if in an 
incorporated town, or township where the applicant pro¬ 
poses to sell intoxicating liquors. Such petition shall be 
kept on file by the auditor until the next ensuing regular 
session of the board of commissioners, when it shall be pre¬ 
sented to the board for their action. The board shall exam¬ 
ine such petition, and if satisfied that the same is in proper 
form, and that it has been signed as heretofore required, 
shall direct a permit to be issued under the hand and seal 
of said auditor, and delivered to the person named in such 
permit, upon his complying with the provisions of this act, 
and paying the costs of filing and recording said petition 
and costs of issuing said permit. 

Sec. 3. Before the granting of a permit by the board of 
commissioners, the applicant shall cause to be executed and 
properly acknowledged before an officer authorized to take 
an acknowledgment of deeds, a bond payable to the State 
of Indiana in the sum of three thousand dollars, with good 
freehold security thereon of not less than two persons, to be 
approved by the board of commissioners, and conditioned 
for the payment of any and all fines, penalties and forfeit¬ 
ures incurred by reason of the violation of any of the pro¬ 
visions of this act, and conditioned further that the principal 
and sureties therein named shall be jointly and severally 
liable, and shall pay to any person or persons any and all 
damages which shall in any manner be suffered by or in¬ 
dicted upon any such person or persons, either in person or 
property or means of support, by reason of any sale or sales 
of intoxicating liquors to any person, by the person receiv¬ 
ing such permit, or by any of his agents or employees. Sep¬ 
arate suits may be brought on said bond by the person 
or persons injured; but the aggregate amount recovered 
thereon shall not exceed the said sum of §3,000; and in 


INTOXICATING LIQUORS. 


289 


case the amount of said bond shall be exhausted by recov¬ 
eries thereon, a new bond in the same penalty, and with 
like sureties, shall be filed within ten days, and in default 
thereof, said permit shall be deemed to be revoked. Such 
bond, after its approval by the board of commissioners, 
shall be filed in the office of the auditor of the county, and 
shall be recorded by such auditor forthwith in a book pre¬ 
pared for that purpose, and shall there remain for the use 
of the State of Indiana, and for the use of any person or 
persons suffering as hereinbefore set forth. Such bond may 
be sued and recovered upon in any court having civil juris¬ 
diction in the county, except justices’ courts, by or for the 
use of any person or persons or their legal representatives, 
who may be injured or damaged by reason of any sale or 
sales of intoxicating liquors, by the person receiving this 
permit, or by any of his agents or employees. The record 
of the bond, or a copy thereof duly certified by such auditor, 
shall be admissible in evidence in any suit on such bond, 
and shall have the same force and effect as the original bond 
would have if offered in evidence. 

Sec. 4. The whole number of votes cast for candidates 
for Congress at the last preceding Congressional election in 
the township, and the whole number of votes for councilmen 
or trustee in any ward or town at the last preceding munici¬ 
pal election in any city or town in which the applicant for 
a permit desires to sell said intoxicating liquors, shall be 
deemed to be the whole number of legal voters of such 
ward, district or township, a majority of whose names shall 
be signed to the petition of such applicant. And it is fur¬ 
ther provided that any person not a legal voter in such 
ward, district or township, who shall sign such petition, or 
any person who signs the name of any person other than 
himself, without the permission, previously obtained of said 
person, to so sign his name, shall be fined not less than §50 
nor more than §100 for each signature so made. 

Sec. 5. Ho permit, as herein provided for, shall be 
granted for a longer or shorter time than one year. It shall 
be the duty of the auditor of the county to furnish the per¬ 
sons to whom such permit is granted a copy of the order 


290 


THE BOARD OF COMMISSIONERS. 


of the commissioners granting the permit, which copy shall 
show in conspicuous letters the date of the commencement 
of such permit and of its expiration. And it is further 
provided, that such copy of the order of the commission¬ 
ers, certified by the auditor, shall be hung up in a conspic¬ 
uous place in the room where such liquor is sold, where the 
same may at all times be seen and read by every person 
desiring to do so. Should any person holding a permit be 
convicted of a violation of any of the provisions of this act, 
such conviction shall work a forfeiture of his permit.^) 

It will be seen by reading the second section of this act, 
a person who desires to get a permit to sell intoxicating 
liquors, to be drank on his premises, must get up a petition 
in writing, stating in the petition the building or number, 
street, ward or township wherein the permission is asked 
to be granted. lie must also pray for such permit, and cer¬ 
tify that the applicant is a resident voter of such county, 
and a citizen of the State of Indiana, and that he is a proper 
person to have and receive such permit. 

The following form may be used : 

To the Honorable Board of Commissioners of the County of 

Vermillion , and State of Indiana: 

"We, the undersigned, legal voters of and residents in 
the incorporated town of Newport, in Vermillion county, 
Indiana, would pray your honors to grant a permit to S. T., 
to sell intoxicating liquors, to be drank on the following 
premises: Lot No. 71, block No. 2, in the aforesaid incor¬ 
porated town. We certify that the said S. T. is a resident 
voter of Vermillion county and a citizen of the State of 
Indiana, and that he is a proper person to have and receive 
such permit. A., B., C. 

This section is quite ambiguous and hard to understand; 
it says that the petition shall be signed by the applicant and 
also by a majority of the legal voters resident in the ward, 
if it be in a city , or town , if it be an incorporated town, &c. 
Taking the above section alone, one would come to the 


{y) Act of 1872 and 1873, PP- 151* 152, 153. 



INTOXICATING LIQUORS. 


291 


conclusion that the applicant who desires to sell intoxicating 
liquors in an incorporated town, would only have to get his 
petition signed by the majority of legal voters residents of 
such ward. But the rule of constructing statutes of this 
character is “ that the intention of the lawmaker is to be 
deduced from a view of the whole and of every part of the 
statute taken and compared together.” (u) Comparing the 
second section of this act with the fourth section, which 
says that the whole number of votes cast for councilman or 
trustee in any ward or town , the meaning of the section is 
plain and obvious. The word town in section four is used 
separate and apart from ward. Hence the w T ords “majority 
of legal voters,” as used in section two, when applied to’ 
incorporated towns, means the majority of the legal voters 
resident of the entire town. 

Form of a petition to sell liquor in a city: 

To the Honorable Board of Commissioners of the County of 

Vigo , State of Indiana: 

We, the undersigned, legal voters and residents of ward 
Ho. 1, in the city of Terre Haute, Vigo county, Indiana, 
would pray your honors to grant a permit to W. S. to sell 
intoxicating liquors, to be drank on the following premises : 
Lot Ho. 6, block Ho. 1, in the aforesaid city. We certify 
that the said W. S. is a resident of Vigo county, and a citi¬ 
zen of the State of Indiana, and that he is a proper person 
to have and receive such permit. A., B. 

In order for an applicant to get a permit who wishes to 
sell liquor in the ward of a city, he must sign the petition 
himself and get the majority of the legal voters resident of 
the ward he wishes to sell in. 

Form for a petition wdiere the person wishes to obtain a 
permit to sell liquor in an unincorporated town, or in a 
township: 

To the Honorable Board cf Commissioners of the County of 

Vermillion , State of Indiana; 

We, the undersigned, legal voters of Eugene township, 


(u) I Kent, p. 461. 
20 



292 


THE BOARD OF COMMISSIONERS. 


Vermillion county, Indiana, would pray your honors to 
grant a ^permit to J. S. to sell intoxicating liquor, to be 
drank on the following premises, in the township, county 
and State aforesaid: Lot Ho. 7, block Ho. 6, in the town 
of Eugene. We certify that J. S. is a resident of Ver¬ 
million county, Indiana, and a citizen of the State of Indi¬ 
ana, and that he is a proper person to have and receive such 
permit, and we will ever pray. 

c., w., g., n. 

In order to get a, permit to sell in any other place save 
'in a city or incorporated town, the applicant, before he 
will be entitled to the permit, must get his petition signed 
by the majority of the legal voters of the township in 
which he desires to sell. In all cases the petition must bo 
signed by the applicant, and by the majority of the legal 
voters of the ward, town or township in which the appli¬ 
cant proposes to sell. It is provided by section four of this 
act, that in order to ascertain the number of legal voters 
in any ward, town or township, the votes cast at the last 
municipal election in the ward or town, or the vote cast 
for congressman in the township in which the liquor is to 
be sold, shall be considered the whole number of votes in 
said ward, town or township. After you have got the 
requisite number of signers to your petition, take it to the 
auditor’s office of the proper county, twenty days before 
any regular term of the board of commissioners, hand it 
to the auditor and have him mark it filed. It must be 
kept on file in the auditor’s office until the ensuing regular 
session of such board of commissioners, when it shall be 
presented to the board for their action. At the time of 
meeting the board must examine such petition, and if sat¬ 
isfied that it is in proper form, and that it has been signed 
by the required number of freeholders, residents of the 
township, town or ward, they shall direct a permit to be 
issued under the hand and seal of their county auditor, and 
delivered to the .person named in such permit, upon the 
executing and properly acknowledging, before an officer 
authorized to take acknowledgments of deeds, a bond pay- 


INTOXICATING LIQUORS. 293 

able to the State of Indiana, in the sum of three thousand 
dollars, with not less than two freeholders as security, con¬ 
ditioned for the payment of all fines, penalties and forfeit¬ 
ures incurred by reason of the violation of any of the pro¬ 
visions of the act passed by the legislature of our State, and 
approved February 27, 1873, to regulate the sale of intox¬ 
icating liquor, &c. And it is further provided, that it must 
contain a condition that the principal and sureties shall be 
jointly and severally liable, and shall pay to any person 
or persons, any and all damages which shall or may be suf¬ 
fered or inflicted upon any person or persons, either in 
person or property, or means of support, by reason of any 
sale or sales of intoxicating liquor, by any person receiving 
such permit, or by his agent or emplo}’ees. 

BOND. 

We, A,B and C, all of Vermillion county, State of Indi¬ 
ana, are held and firmly bound unto the State of Indiana 
in the penal sum of three thousand dollars, which wo 
jointly and severally well and truly promise to pay, dated 

this - day of -, 187-. The conditions of the 

above obligation are such that whereas, the said A has 
made application to the Board of Commissioners of the 
county of Vermillion, for a permit to sell intoxicationg 
liquors on lot Ho. 71, block Ho. 2, in the incorporated 
town of Hewport, Vermillion county, Indiana, and for the 
privilege of allowing the same to be drank on said premises; 
and whereas the board of commissioners are about to issue 
to the said A such permit, now if the said A shall well and 
truly pay off any and all fines, penalties and forfeitures in¬ 
curred by reason of the violation of any of the provisions 
of the Temperance Act entitled “ an act to regulate the 
sale of intoxicating liquors, to provide against evils result¬ 
ing from any sale thereof, to furnish remedies for damages 
suffered for any person in consequence of such sale, pre¬ 
scribing penalties, to repeal all laws contravening the pro¬ 
visions of this act, and declaring an emergency;” approved 
February 27,1873, and conditioned further that the princi¬ 
pal and sureties herein named shall be jointly and severally 




294 


THE BOARD OF COMMISSIONERS. 


liable, and shall pay to any person or persons any and all 
damages which shall in any manner be suffered by or in¬ 
flicted upon any such person or persons, either in person or 
property, or means of support, by reason of any sale or 
sales of intoxicating liquors to any person by the said A, 
or by any of his agents or employees, then this obligation 
to be void; else to remain in full force and virtue in law, 

A, [seal.] 

B, [seal.] 

C, [seal.] 

The bond must be acknowledged before some person 
authorized by law to take acknowledgement of deeds. 

The following form may be used: 

STATE OF INDIANA, \ 

Vermillion County, / So ‘ 

Before the undersigned, a justice of the peace in and for 

the county and State aforesaid, on this —-day of-, 

187—, the within named A., the principal, and B. & C., 
sureties of foregoing bond, acknowledged the execution 
thereof. 

Witness my hand and-seal, this-day of-, 

187—. JOHN JONES, J. P. [seal.] 

This bond must be approved by the board, which appro¬ 
val should be in or attached to the bond. 

The following form may be used: 

Accepted and approved this-day of-», 187—. 

Gr 1 

W t C° m ’ rs of Vermillion 
k’’j County, Indiana. 

After such bond has been approved by the board it must 
be filed in the Auditor’s office, and must be recorded by 
such Auditor forthwith in a book prepared for that purpose, 
and shall there remain for the use of the State of Indiana, 
and for the use of any persons, &c. 

The commissioners, before approving the bond, should 
make inquiry into the financial standing and worth of the 





INTOXICATING LIQUORS. 


295 


sureties. They must be freeholders, and should be worth over 
and above all indebtedness an amount greatly in excess over 
penalty of the bond. To do this they may call to their aid 
any paper, deeds, records, books, maps or charts. And may 
summons witnesses and examine them .under oath touching 
the value of their property, or they can examine the sure¬ 
ties in reference to the same. They should not be unrea¬ 
sonable in their demands, but they should see that the bonds¬ 
men are responsible to the full amount of the bond. 

From the general reading of this act one would be led to 
believe that the proceedings on the part of an individual 
to obtain a permit to sell intoxicating liquors was intended 
by our law-makers to be an ex parte proceeding, and that 
no resistance could be made to the granting of the permit 
by the Board of Commissioners; and we think this is true 
to some extent, but the applicant is required to file his pe¬ 
tition with the county auditor twenty days before his case 
can be heard. This is evidently intended as a notice to the 
public, and certainly contemplates a defense. It is provided 
by seetion five of the Temperance act, “ that if any person 
holding a permit shall be convicted of a violation of any 
of the provisions of said act that such conviction shall work 
a forfeiture of his permit and of all rights under the same, 
and that no permit shall thereafter be granted to such per¬ 
son before the expiration of five years from the date of such 
conviction, (m) 

From the reading of these two sections it is evident that 
any citizen of any ward, town, or township may come in 
and resist the application : 1st. On account of the insuffi¬ 
ciency of the petition. 2d. That the petition has not been 
signed by the majority of legal voters of the ward, town, 
or township. 3d. That the applicant has been convicted 
of a violation of some of the provisions of the Temperance 
act. 4th. That the signers are not all legal voters and 
residents of the proper county. If the petition has not 
been filed twenty days before the meeting of the board, 


{m) Act of 1873, P- I 54 > sec. 5. 



296 


THE BOARD OF COMMISSIONERS. 


they should continue the application until next term, at 
which time it should be considered. The board should 
make a complete record of their proceedings in such cases. 

The following form may be used: 

September Term , 1873, of the Board of Commissioners of the 

County of Vermillion: 

Application of A for a permit to sell intoxicating liquors in 
Newport 

Be it remembered, that on the-day of July, 1873, A 

tiled with the Auditor of Vermillion county, Indiana, a pe¬ 
tition signed by the said A and one hundred resident legal 
voters of the incorporated town of Newport, said county, 
praying this board to grant the said A a permit to sell in¬ 
toxicating liquor on lot No. 71, Block No. 2, in the incor¬ 
porated town of Newport, in said county, with the privi¬ 
lege of allowing the same drank on said premises. The 
said A at the same time filed with the auditor of said coun¬ 
ty a bond, made payable to the State of Indiana, in the pe¬ 
nal sum of three thousand dollars, which bond was signed 
by the said A and B and C as his securities, as required by 
law, which bond was approved and accepted by this board. 
And after a careful examination of said petition and hear¬ 
ing the evidence offered in support of it, we are satisfied 
that the same is in proper form, and that it had been signed 
by the majority of legal voters, residents of the incorpor¬ 
ated town of Newport, being satisfied that the said A has 
complied in every respect with the requirement of the law. 
It is therefore ordered, directed, and decreed by the Board 
that a permit be issued and delivered to the said A under 
the hand and seal of the Auditor of Vermillion County, 
Indiana, authorizing him to sell intoxicating liquors on lot 
No. 71, block No. 2, in the incorporated town of Newport, 
with the privilege of allowing the same to be drank on 
said premises; that said permit be dated on this 3d day of 
September, 1873, and to expire on 3d day of Septem¬ 
ber, 1874. S., I 

R., V Comm’rs of Vermillion Co~. 
B,j 



INTOXICATING LIQUOHS. 


297 


After the granting of the permit by the Board, the Audi¬ 
tor must issue and deliver to him under his hand and offi¬ 
cial seal a certificate of the same. 

The following may be used: 

STATE OF INDIANA, \ 

Vermillion County. J 8 ' 

This certifies, that permit has beeji granted by the Board 
of Commissioners of Vermillion County, Indiana, to A, for 
one year, from the 3d day of September, 1873, to sell in¬ 
toxicating liquors in a less quantity than a quart at a time 
(with the privilege of allowing the same to be drank upon 
his premises), at his place of business in said county, and at 
such place of business only, viz: lot No. 71, block No. 2, in 
the incorporated town of Newport, in Vermillion Township, 
in the county aforesaid, subject to the restrictions and under 
the provisions of “an act to regulate the sale of intoxi¬ 
cating liquors, to provide against evils resulting from any 
sale thereof, to furnish remedies for damages suffered for 
any person in consequence of such sale, prescribing penal¬ 
ties, to repeal all laws contravening the provisions of this 
act, and declaring an emergency;” approved February 
27, 1873. 

In testimony whereof, I hereunto set my hand and affix 
the seal of the Board of Commissioners of said county, 
this 3d day of September, 1873. 

[Seal.] J-- T-, 

Auditor of Vermillion County . 

In case the amount of the bond shall be exhausted by re¬ 
covery thereon, a new bond must be filed in ten days, or 
the seller forfeits his license. The new bond must be like the 
old one, with additional security, and must be approved by 
the Board, and filed and recorded like the old one. 

The Auditor must furnish the person to whom the per¬ 
mit is granted a copy of the order of the Commissioners 
granting the permit, which copy must show in conspicuous 
letters the date of the commencement of such permit and 


298 


TIIE BOARD OF COMMISSIONERS. 


of its expiration. This copy must be hung up by the 
grocery keeper in his grocery, in a place where it can be 
seen and read by anyone who may desire so to do. 


CHAPTER XIV. 

TOWNS. 

Vacation of Streets and Alleys , Common , Public Square , or part 
thereof,\ in any Incorporated Toion in this State . 

It is provided by the statute that, “ Whenever any per¬ 
son or corporation interested in any real estate in this State, 
laid out in streets and lots as a town, may desire to vacate 
any lot, street, alley, common, public square, or part thereof, 
in such town or plan of town,(?i) such person or corporation 
may petition the Board of County Commissioners for the 
proper county, giving a distinct description of the property 
to be vacated, and the names of the persons effected thereby 
The petition must be filed with the County Auditor thirty 
days before the meeting of the Board. 

PETITION. 

To the Honorable Board of Commissioners of Vermillion Co.: 

The undersigned, your petitioner, would represent to your 
Honors that he is the owner of lot Ho. 72, in the town of 
Eugene in said county; that part of his said lot is laid out 
in an alley; that said alley lays between lots 72, aforesaid, 
and lot Ho. 73, in said town; that said alley passes over 
the land of your petitioner and one S. L., and that the said 
S. L. and your petitioner are the only persons to be effected 
by the vacation of said alley. He therefore prays your 
Honors to vacate and abolish said alley. T. J. 

Hotice of the pendency of the petition must be given for 


(»)i G. & H., p. 632. 




TOWNS. 


299 


thirty days in a public newspaper printed in the county 
where the suit is pending, if any paper is published in the 
same, and by written notices, set up in three of the most 
public places near the alleys, streets, lots or squares pro¬ 
posed to be vacated. 

Form of Notice: 

Notice is hereby given that there is a petition now on 
file in the county auditor’s office, praying for the vacation 
of the alley lying between lots No. 72 and 73, in the town 
of Eugene, Vermillion county, Indiana, and that said peti¬ 
tion will be presented to the board for final action, at their 
June session, 1873. Said alley proposed to be vacated 
passes over the land owned by T. J. and S. L., and they are 
the only persons to be affected by said vacation. 

T. J. 

At the time set for the hearing of the petition take a 
copy of your notice and go before the board and establish, 
either by written or parol evidence, that you are the owner 
of land in the town in which you propose to vacate the alley, 
&c., &c. Then prove you stuck up your notice in three 
public places near the alley, lot, street or square proposed 
to be vacated. Show the exact day the notices were stuck 
up, and then, after showing that the copy is an exact 
copy of the notice posted up by you, introduce your 
copy in evidence. If you gave notice by publication, pro¬ 
duce the affidavit of the printer as to the time of publica¬ 
tion. After you have done this, if no opposition be made 
to such petition, the board of commissioners may vacate it, 
with such restrictions as they may deem for the public 
good. But if any one appears before the board and ob¬ 
jects to such vacation, the board must continue the cause 
until the next term of the board, when, if the objector will 
consent to such vacation, the board must enter an order 
vacating the same; but if the consent of the objector can 
not be obtained, if the petitioner can get two-thirds of the 
real estate holders of the town to petition for the vacation 
of the same, the board must grant the prayer of he peti- 


300 


TIIE BOARD OF COMMISSIONERS. 


tion, and must vacate the alley, street, &c., and must enter 
an order to that effect of record. But no vacatiou of a 
street or alley shall take place unless the consent of the 
persons owning the property immediately adjoining thereto 
be obtained thereof in writing, which consent shall be ac¬ 
knowledged before some justice of the peace and filed 
with said board. 

Form of consent: 

I, S. L., do hereby consent to the vacation of the alley 
between lots No. 72 and 73, in the town of Eugene, Ver¬ 
million county, Indiana. S. L. 

STATE OF INDIANA, \ c<a # 

Vermillion County. J 

Before the undersigned, a justice of the peace in and for 
the county and State aforesaid, on this 17th day of May, 
1873, personally came S. L. and acknowledged the execu¬ 
tion of the above instrument. 

J. S., J. P. [seal.] 

The above forms can be used in the case of the vacation 
of streets, lots and public squares, with a slight variation. 
In drafting your petition and giving notice, be careful to 
get the right description of the lots and the names of the 
true owners. 

The board of commissioners may change the name of 
any town in their county on petition praying for the same, 
signed by the majority of the qualified voters of said 
town. (A;) 

Form for Petition: 

To the Honorable Board of Commis'ers of Vermillion County: 

We, the undersigned, residents and legal voters of the 
town of Eugene, in Vermillion county, Indiana, would re¬ 
spectfully represent to your honors that we believe that the 
interest of the citizens of said town will be promoted by 


(£) i G. & H. p. 633, sec. II. 



PRIVATE ROADS. 


301 


the change in the name of said town, for the reason that 
there is another town in Clarke county, Indiana, of the 
same name. We therefore pray your honors to change 
the name of said town from Eugene to that of Hilson, and 
we will ever pray. 

Get the majority of the qualified voters living in said 
town to sign your petition, take it and go before the board 
while in regular session, file your petition with the auditor, 
and then make proof that the petition has been signed by 
the majority of legal voters of the town you desire to 
change the name of. After this is done the board will 
make an order changing the name of such town, and pub¬ 
lish the notice as required by law. 


CHAPTER XV. 

Private Roads—how Laid Out , Changed and Vacated. 

It i3 provided by the act approved March 9,1861, that 
any person or persons may have a private road laid out, 
changed or vacated upon presenting a petition praying there¬ 
for, signed by the person or persons, asking for the same, 
to the board of commissioners of the county in which such 
petitioner or petitioners may reside, under the same regu¬ 
lations now provided by law for the location, change or 
vacation of a public highway, so far as such regulations 
are or may be applicable. 

Form of Petition for Private Road. 

To the Honorable Board of Commissioners of the County of 
Vermillion: 

The undersigned would represent to your honors that he 
is a resident freeholder of said county; and that he owns 
the south-east quarter of section 7, township 17 north, range 
10 west, in Vermillion county, Indiana; and that one Hugh 
Cook is the owner of the south-west quarter of section 8, 
township and range aforesaid. And he would further rep- 



302 


THE BOARD OF COMMISSIONERS. 


resent that there is a public highway leading from Perry s- 
ville to the town of Eugene, that runs on the east side of 
Hugh Cook’s tract of land above described, and that this is the 
only highway that is convenient for your petitioner to travel 
to either of said towns: that unless he has a passway over the 
land of Hugh Cook, he will be greatly discommoded and 
troubled in getting from his residence to either of said towns. 
Your petitioner would therefore pray your honors to lay out 
and establish for him a private way, twenty feet wide across 
said tract of land belonging to Hugh Cook, to commence six 
feet north of the south-west corner of said quarter section, 
running thence east one-half mile, to the above mentioned 
highway. Said highway passes over the land of Hugh 
Cook. “ THOMAS HEED. 

Before presenting your petition to the board for their 
action thereon, you must give notice of the time and place 
the petition will be presented to the board, by posting up 
notices in three of the most public places in the neighbor¬ 
hood of the road for at least twenty days before the meeting 
of the board at which you intend to present your petition, 
or you may publish such notice for three weeks successively 
in a newspaper published in the county. After you have 
given the required notice, take your petition and a copy of 
your notice with you, and go before the board; hand your 
petition to the auditor of the county, and tell him to mark 
it filed. Then introduce yourself or some one else as a wit¬ 
ness, and prove that the notices were stuck *up at the proper 
places and in time; prove also that the copy that you have 
is a correct copy of the ones you stuck up, and then intro¬ 
duce it in evidence. You must show, also, that the road 
will pass over the land of the individual that you allege to 
be the owner in your petition. If there is no remonstrance 
filed against the laying out of said road, the board must 
enter an order granting the prayer of the petition, and order 
the road to be opened and kept in repair at the expense of 
the petitioner or petitioners. 

Form of Notice. 

Notice is hereby given, that there will be a petition pre- 


MACADAMIZED, GRAVEL AND PLANK ROADS. 303 

sented to the board of commissioners of the county of Ver¬ 
million, at their June session, 1873, asking for the laying 
out and establishing a private way on the following route: 
Commencing six feet north from the north-west corner of 
the south-west quarter of section 8, township '17 north, 
range 10 west, in Vermillion county, Indiana, running thence 
east one-half mile to the Perrysville and Eugene road. Said 
private way will pass over the land owned by Hugh Cook. 

THOMAS HEED. 

As to change and vacation of private ways and remon¬ 
strance, see ante-page 186, of this work, under the head 
of highways running through but one county. And the 
forms there given can be used with a slight change in cases 
of this character. In cases of private ways, the county has 
no damages, but all the costs must come out of the pockets 
of the petitioner. If there are viewers appointed by the 
board to assess the damages that the citizen or citizens may 
sustain by reason of the location of the road, and the view¬ 
ers report in favor of damages, the board should order the 
private way opened if the petitioner will pay tho damages 
and open the road at his own expense.(r) 


CHAPTER XVI. 

Macadamized , Gravel and Plank Eoads—how Established. 

It is provided by the act approved March 6th, 1865, that 
any number of persons owning more than three-fifths of 
the amount of any real estate, as shown by the book of the 
county auditor, or counties in which the proposed road is to 
be constructed, wish to construct a Macadamized, gravel or 
plank road, they must get up a written petition to the county 
board, or counties, as the case may be, stating in their peti¬ 
tion their desire to form such a road, giving the starting 
point and terminus, the distance in miles, the route they 


(r) Act of 1861, p. 131, regular session. An order by the county board author¬ 
izing the opening of a private way, without defining its width, is void on its face. 
Barnard ctal. t v. Haworth, 16 Ind., 103. 




304 


TIIE BOARD OF COMMISSIONERS. 


propose to construct said road upon. If the board shall 
deem the proposed road of public utility, they shall grant 
the applicants the right of the highway petitioned for, to 
be the property of the association. The persons, after 
receiving ‘the permit from the county board, may organize 
themselves into a corporation, and elect such officers and 
make such by-laws and rules for their action as they may 
deem right and proper, not inconsistent with the power con¬ 
ferred upon them by the statute. 

The road must be five miles in length; and all real estate 
three-fourths of a mile each side of the proposed road shall 
be taxed to construct said road—each tract of land to be 
taxed in proportion to the appraisement that may be on the 
auditor’s books at the time of the organization, except real 
estate inside the limits of an incorporated town, which is 
not subject to taxation for such purpose. After the company 
have organized, the board of commissioners of the proper 
county must appoint a suitable person to estimate the grad¬ 
ing, graveling or planking, as the case may be; the length 
of the proposed road within the prescribed limits, as shown 
by the books of the county auditor; to audit the amount 
of each owner’s tax and place it in the hands of the treas¬ 
urer to be collected as other tax. The person so appointed 
shall take an oath to perform his duty to the best of his 
ability. The rate per cent, of taxation must be estimated 
on the appraised value of the land as appears on the audi¬ 
tor’s books of the proper county at the time of the organi¬ 
zation of the company. The first thing that should bo 
done where a road of this kind is to be established, is to 
get up the petition. 

Form of Petition. 

To the Honorable Board of Commissioners of the County cf 

Vermillion: 

We, the undersigned, would represent unto your honors 
that we are the owners of more than three-fifths of the 
amount of real estate lying three-fourths of one mile on 
each side of that part of the public highway known as the 


Acts of regular session, 1865, p. 90. 



MACADAMIZED, GRAVEL AND PLANK ROADS. 305 

Newport and Eugene road that lies between the north end 
of the bridge across the Little Vermillion, running at New¬ 
port, and the south end of the bridge across the Big Ver¬ 
million river at Eugene, all in Vermillion county, Indiana. 
We would further represent to your honors that we desire 
to build a gravel road from one of said bridges to the other, 
a distance of seven miles; to commence at the north end 
of the bridge at Newport aforesaid, and to terminate at the 
south end of the aforesaid bridge at Eugene. We there¬ 
fore pray your honors to grant us the right of said high¬ 
way, to be used and held by us as our property for the pur¬ 
poses aforesaid. 

C. , A, 

D. , B., 

F., M. 

Take this petition and go before the board at some regu¬ 
lar session, and show to the satisfaction of its members, 
by the certificate of the proper county auditor, that the 
petitioners own the land as set out in their petition, and 
they will grant the right of way. 

It is provided by the act approved March 11,1867, that 
any plank, Macadamized or gravel road company organ¬ 
ized under the act approved May 12,1852, which has a 
subscription of eight hundred dollars per mile of road, 
and not having a sufficient amount for the construction of 
their road, they may petition the board of commissioners 
of the county or counties through which the proposed road 
is or or may be located, for the appointment of disinterested 
freeholders of the county or counties, to assess the amount 
of benefit to each tract of land in one and one-half mile 
of such road on either side, or within the like distance of 
the terminus thereof. On the filing of this petition and 
proving that they have eight hundred dollars per mile of 
subscription, the board must appoint the assessors, and 
cause the auditor of the county to notify them of their ap¬ 
pointment and of their duties under such appointment, and 
to fix a time and place for their meeting before proceeding 


306 


THE BOARD OF COMMISSIONERS. 


to the discharge of their duties. (y) In all cases of this 
kind the board should be careful to comply with the letter 
and spirit of the law. 


CHAPTER XYH. 

County Seats—Relocation of-—How Accomplished. 

The act approved Feb. 24, 1869, provides that whenever 
fifty-five per cent, of the legal voters of any county in 
this State shall, by written petition request the board of 
commissioners of their county to relocate the county seat 
of ^uch county, designating in such petition the site where 
such relocation is desired, and shall procure the convey¬ 
ance to such board by deed conveying good title of two 
lots of ground, one containing not less than two acres as a 
site for the court house, and the other containing not less 
than one-fourth of an acre as a site for the county jail, to 
be held by such board for that purpose, and shall deposite 
with such board the sum of one hundred dollars to pay / 
an architect, and one hundred and fifty dollars to pay com¬ 
missioners to assess damages, then such board shall pro¬ 
ceed to have new county buildings erected thereon, and the 
county seat removed thereto, in the manner and upon the 
conditions set forth in the following section: Provided , 
That no such relocation of a county seat shall be made 
unless it shall be removed at least three miles. 

If such petitioners, or some of them, shall, within three 
months after such estimates and plans are presented, cause 
to be paid into the county treasury, or the payment thereof 
secured to such board to their satisfaction, a sum equal to 
the value of the real property belonging to the county at 
the then county seat, then such board shall at once cause 
the auditor to advertise immediately in the newspapers of 

O) Act 1867, p. 167; 23 Ind. 353; 26 Ind. 53; 28 Ind. 382; 22 Ind. 484; 

26 Ind. 119; 30 Ind. 311; id. 309; i&Ind. IOI; 30 Ind. 226; 18 Ind. 244; 

23 Ind. 623. 




COrS*TY SEATS. 


m 


such county, if any there be, or if none, then in the near¬ 
est newspaper of general circulation, and by posting in six 
public places in said county, for sealed proposals for the 
erection of such buildings according to said plans and 
specifications; such proposals to be presented to the board 
at its next regular session. 

To ascertain and fix the amount and value of the real 
property of any county at the county seat, it shall be the 
duty of the county board of any county before whom a 
petition shall be filed, a3 provided in the first section of 
this act, to direct the auditor of said county to notify the 
Governor of the State of the filing of the same, who shall, 
upon the reception of said notice, appoint three disinter¬ 
ested persons, non-residents of said county, as commission¬ 
ers, to examine said real estate at said county seat, and 
assess the value thereof; and to enable them so to do, they 
shall meet at said county seat on a day whereof public 
notice shall be given, and they may examine competent 
witnesses as to such value, and after they, or a majority of 
them have agreed, they shall make out duplicate state¬ 
ments of such action and conclusion, and file one copy with 
the auditor of said county, and transmit by mail the other 
copy to the Governor of the State. 

Appeals—How Taken. 

It is provided by the statute that: 

31. From all decisions of such commissioners there 
shall be allowed an appeal to the circuit or common pleas 
court, by any person aggrieved; but if such person shall 
not be a party to the proceeding such appeal shall not be 
allowed, unless he shall file in the office of the county 
auditor his affidavit setting forth that he ha3 an interest in 
the matter decided, and that he is aggrieved by such de¬ 
cision, alleging explicitly the nature of his interest. 

32. Such appeal shall be taken within thirty days after 
the time such decision was made, by the appellant fi ling 
with the county auditor a bond with sufficient penalty and 
sureties, to be approved by said auditor, with condition for 

21 



308 


THE BOARD OF COMMISSIONERS. 


the due prosecution of such appeal, and the payment of 
all costs, if the same shall be adjudged against said appel¬ 
lant. 

33. Within twenty days after the filing of such appeal 
bond, the auditor shall make out a complete transcript of 
the proceeding of said board, relating to the proceeding 
appealed from, and shall deliver the same, and all the pa¬ 
pers and documents filed in such proceeding, and the ap¬ 
peal bond, to the clerk of the court to which the appeal is 
taken. 

34. When such appeal is taken by a person not a party 
to the proceeding, or when such appeal is taken in vaca¬ 
tion, the appellant, if there be an appellee, shall cause a 
summons to be sued out of the clerk’s office of the court 
to which the appeal is taken, returnable on the first day of 
any term of such court next after the the date thereof, re¬ 
quiring the appellee to appear and answer said appeal, 
which summons shall be issued and served as other similar 
process. 

35. If such appeal shall be filed, and such summons, 
when necessary, served ten days before the first day of the 
court next after such appeal, such cause shall stand for 
trial at such term; otherwise it shall be continued until 
the next term of the court. 

36. All appeals thus taken to the circuit or common 
pleas court shall be docketed among the other causes pend¬ 
ing therein, and the same shall be heard, tried and deter¬ 
mined as an original cause. 

37. Such court may make a final determination of the 
proceeding thus appealed, and cause the same to be exe¬ 
cuted, or may send the same down to such board, with an 
order how to proceed, and may require such board to com¬ 
ply with the final determination made by such court in the 
premises, (s) 

In our comment on the law governing appeals from the 
Board of Commissioners to the higher courts, we shall take 
up each section of the statute and comment upon them 


(s) i G. & H. 253, secs. 31, 32, 33, 34, 35, 36, 37. 



APPEALS. 


309 


separately. We will commence with section 31 supra. 
This section is quite comprehensive, and if taken in its 
broadest sense would authorize an appeal from any de¬ 
cision made by the Board; for it says, from all decisions , 
but the words, all decismis , as used in this section, must 
be taken in a qualified sense. The Board of Commissioners 
are clothed with a two-fold power, legislative and judicial. 
From their decisions when sitting and voting as a legisla¬ 
tive. body no appeal will lie; but an appeal may be taken 
from all their judicial decisions. But if they exceed their 
authority while acting as a legislative body, their acts will 
be void and an appeal will lie to the higher courts.(a) To 
undertake to draw the lines of distinction between their 
legislative and judicial acts, is a task not free from difficulty; 
but we shall attempt to do so. A legislative act of the 
Board is one that operates upon all the persons or property 
or both in a township or townships, or on the persons or 
property or both of the entire county alike. A judicial 
act of the Board is a decision upon some question presented 
to them which applies only to some particular person or per¬ 
sons, and binds no others. We think that all decisions of the 
Board on questions arising in cases where the statute con¬ 
templates an adverse party, may be appealed from. Our 
Supreme court in the case of Hanna v. the Board of Com¬ 
missioners of Putnam county, supra , say, in commenting 
on this section: “ The language authorizing an appeal is 

comprehensive, and was undoubtedly intended to include all 
actions of the Commissioners not strictly within the limits 
of local legislative powers conferred by the statute. For 
the purpose of authorizing an appeal the word decision 
will be applied to any ruling final in its nature upon any 
subject upon which the Board of County Commissioners 
are not authorized to take legislative action.” 

This section authorizes an appeal by any person who may 
feel aggrieved by the decision of the Board. The word 
aggrieved in this section means injured or wronged. If a 
person, therefore, feels injured by the decision of the 


(a) Hanna v. Board of Commissioners of Putnam county, 29, Indiana, 170. 



310 


THE BOARD OF COMMISSIONERS. 


Board, he may appeal from that decision to the Circuit 
Court; but if the person appealing was not a party to the 
proceeding before the Board, he cannot appeal unless he 
files in the office of the county Auditor his affidavit, show¬ 
ing that he has an interest in the matter decided, and that 
he is aggrieved by such decision, alleging explicitly the 
nature of his or her interest. It would not be sufficient to 
state in his affidavit that he was interested, but the nature 
of his interest must be shown. (t) We are of the opinion 
that any person or persons who are made adverse parties 
by the pleadings, and have been summoned to answer an¬ 
other, and appears or fails to attend, and is defaulted, may 
appeal from the decision of the Board, without affidavit, to 
the Circuit Court, by filing his bond in thirty days. So 
when a person has been constructively summoned (by ad¬ 
vertisement in a newspaper or by posting up notices, etc,) 
in common with other citizens, and appears and makes 
himself a party of record, he may appeal without affidavit. 
But in all other cases not coming under these two excep¬ 
tions, the appeal can only be granted on affidavit showing 
interest. 

Affidavit for an appeal: 

STATE OF INDIANA, 1 . 

Vermillion County. J 

John Smith being duly sworn upon his oath sa} r s : “ That 
the Board of Commissioners of Vermillion county did, at 
their regular June session for the year 1873, on the third 
day of said term, it being the fourth day of said month, did 
pass and enter an order of record, appropriating six thous¬ 
and dollars of the money belonging to the public funds of 
said county, to the Farmers’ Home Institute, to enable 
said corporation to increase its stock of books. A copy of 
said decree is filled herewith and made a part of this affida¬ 
vit.” The affiant, John Smith says that he is a resident 
tax-payer of said county, and has been for seven years 

(*) Fordyce v. The Board of Commissioners of Montgomery county, 28, Ind., 
454 —i 3 » Ind., 247—25, Ind., 333. 



APPEALS. 


811 


past, and that he was not a party to ihe proceeding of the 
Board in making said appropriation, and that the action of 
the Board of Commissioners of Vermillion county in mak¬ 
ing the appropriation aforesaid was illegal and without au¬ 
thority of law, that he, as a tax-payer of said county, is 
aggrieved by the action of the Board in making said ap¬ 
propriation, he therefore asks an appeal from said order to 
the Circuit Court. JOHN SMITH- 

Subscribed and sworn to before me this June 29, 1873. 

[Seal.1 J. T., Auditor of Vermillion county. 

Form of Bond: 

The undersigned are held and firmly bound to the Board 
of Commissioners of the county of Vermillion, and to the 
Farmers’ Home Institute in the penal sum of five hundred 
dollars, on this condition, to-wit: The undersigned, John 
Smith, having this day appealed from an order of the Board 
of Commissioners of the county of Vermillion, made on the 
fourth day of June, 1873, by which the said Board donated 
to the Farmers’ Home Institute, six thousand dollars of the 
public money, belonging to Vermillion county. How if 
the said John Smith shall duly prosecute his said appeal 
and pay all costs that shall be assessed against him, then 
this bond to be void, else to remain in full force. 

THOMAS SMITH, 

> RICHARD ROE. 

Taken and approved by me this 29th day of June, 1873. 

[Seal.] J. T., Auditor of Vermillion county. 

In making out your appeal bond in cases where there has 
been more than one order of the Board, you should be 
careful to let the bond show from what order you appeal. 
To illustrate. Suppose you are appealing from the pro¬ 
ceeding of the Board in locating and establishing a high¬ 
way, the Board in such cases generally enter an order fix¬ 
ing the amount of damages, and an order establishing the 
road. You can appeal from either or both orders, but if 
you wish to appeal from one only, you must have your 
bond to show that fact, or if you appeal from both let your 


312 


THE BOARD OF COMMISSIONERS. 


bond so state.(< 7 ) It ^sometimes quite difficult to tell who 
should be made appellees in such eases. But the stat¬ 
utory rule in reference to parties defendants is a safe one to 
follow: That all parties who claims an interest in the con¬ 
troversy adverse to the appellant, or who is a necessary 
party to a complete determination or settlement of the 
question involved, should be made appellees. Where there 
is more than one party, either plaintiff or defendant, in a 
cause before the Board, and one or more of them may ap¬ 
peal. The appeal must be taken in thirty days from the 
time the decision was made. For computation of time see 
ante page- 

If you desire to appeal, you must take your bond and affi¬ 
davit (when one is required.) and go to the proper auditor’s 
office in thirty days from the time the decision was ren¬ 
dered, and file the same with him, and inform him you 
desire to take an appeal to the circuit court. He must 
approve the bond if he thinks the security good. On doing 
this, the law makes it his duty to make out within twenty 
days after filing such appeal bond, a complete transcript of 
the proceedings of said board relating to the proceeding 
appealed from, and shall deliver the same and all papers 
and documents filed in such proceeding, and the appeal 
bond, to the clerk of the court to which the appeal is taken- 
Both the appellant and the security must sign the bond. 
After the auditor has made out his transcript, he should 
annex to the bottom of it a certificate that the same is a 
true and complete transcript of all the proceedings had 
before the board in the above entitled cause. Tran¬ 
script means what is recorded in the case. 

Certificate to Transcript. 

I, James T., auditor of Vermillion county, Indiana, do 
hereby certify that the above and foregoing is a complete 
transcript of all the proceedings before the board of com- 


(g) Wright and another, and Wells and others, 27, Indiana, 65. 

An appeal suspends the operation of all orders appealed from Molihan v. State, 
30 Ind 266. Young v. the State, 34 Ind., 46. 



appeals. 


313 


missioners of the county of Vermillion in the above entitled 
cause, as taken and copied from the record of said board. 

In witness whereof I have hereunto set my hand, and 
affixed my official seal, this — day of-, 187-. 


[seal.] 


JAMES T., 

Auditor of Vermillion County. 


The filing of the appeal bond suspends the order appealed 
from. 

If the county auditor fails to send up the papers in proper 
time, the appellant may move the court and obtain a man¬ 
damus against him to send up the papers. (n) If a party 
presents a claim against the county to the board, and they 
fail to allow it, or allow a part and refuse to allow the 
remainder, he may appeal from their decision to the circuit 
court, or may bring his action against the board.(o) But 
if he recovers less judgment in the court above than was 
allowed him by the board, he must pay the costs of the 
appeal.(p) 

(«) 4 Blackford 176. (o) 15 Ind. 147; 22 Ind. 187; 20 Ind. 178. (/) 15 
Ind. 181. 

See on questions of appeals: 31 Ind. 51; 16 Ind. 15; 30 Ind. 266; 34 Ind. 
46; 31 Ind. 505; 4 Black. 116; 5 Black. 594; 8 Black. 62; 31 Ind. 248; 
29 Ind. 170; 28 Ind. 454; 25 Ind. 333 j 8 Ind. 522; 23 Ind. 518; 6 Ind. 392; 
15 Ind. 14; 22 Ind. 187; 20Ind. 178; 15 Ind. 181; 7 Ind. 187; 1 Ind. 79; 
I Blackford 4. 






PAET SECOND. 

































































■ ' 



















CHAPTER XVm. 


ANIMALS KILLED OR INJURED BY LOCOMOTIVE, CARS, ETC. 

FORMS FOR NOTES, BONDS, AGREEMENTS, DEEDS, ETC. 

AN ACT to provide compensation to the owners of animals killed or injured 
by the cars, locomotives, or other carriages of any Railroad company in this 
State, and to enforce the collection of judgments rendered on account of the 
same, and to appeal all laws inconsistent therewith. 

[Approved March 4, 1863.] 

Section 1. Be it enacted by the General Assembly of the 
State of Indiana , That lessees, assignees, receivers, and 
other persons, running or controlling any railroad, in the 
corporate name of such company, shall be liable, jointly or 
severally with such company, for stock killed or injured by 
the locomotives, cars, or other carriages of such company, 
to the extent and according to the provisions of this act. 

Sec. 2. That whenever any animal or animals shall be 
or shall have been killed or injured by the locomotives, 
cars, or other carriages used on any railroad in, or running 
into or through this State, whether the same may be or 
may have been run and controlled by the company, or by 
the lessee, assignee, receiver or other person, the owner 
thereof may go before some justice of the peace of the 
county in which such killing or injuring occurred, and file 
his complaint in writing, and such justice shall fix a day to 
hear said complaint, and shall cause at least ten days’ notice 
to be served on the railroad company, by the service of a 
summons by copy on any conductor of any train passing 
into or through said county, but in all cases when the value 
of any animal or animals so killed, or the injury done shall 
exceed fifty dollars, the owner or owners of any such ani¬ 
mal or animals, may file his or their complaint, and prose- 


318 


ANIMALS KILLED BY RAILROADS. 


cute his or their claim before such justice of the peace, in 
the court of common pleas, or in the circuit court of the 
county, at his or their option. 

Sec. 3. When such complaint shall be filed in the 
court of common pleas, or in the circuit court, the clerk of 
said court shall issue a summons thereon as in other cases, 
which summons shall be served by the sheriff on the rail¬ 
road company defendant, at least ten days before the first 
day of the term, at which such cause is to be heard, and 
such summons may be served by copy on any conductor 
on any train on said road passing into or through said 
county. 

Sec. 4. The action may, in all cases contemplated by 
this act, be brought against the railroad as defendants, 
whether the same is or was being run by the company or by 
lessee, assignee, receiver or other person in the name of 
such company. 

Sec. 5. On the hearing of any such cause, the court or jury 
trying the same shall give judgment for the plaintiff or 
plaintiffs, for the value of the animal or animals killed or 
the injury done, without regard to the question whether 
such killing or injury was the result of wilful misconduct, 
or negligence, or the result of unavoidable accident; and 
if such cause be commenced in the common pleas or cir¬ 
cuit court of the county in which such animal or animals 
are killed, or such injury done, the court shall, on motion 
of the plaintiff-or plaintiffs, on the rendition of such judg¬ 
ment, or afterwards at any time, when notice of such mo¬ 
tion has been served on the railroad company defendant, at 
least ten days before the first day of the term of the court 
at which such motion is to be heard, order a writ to issue, 
directed to the sheriff of the proper county, for any conductor, 
agent, employee of such railroad company, or of the lessees, 
receivers, or assignee of such company, named in such motion, 
to appear forthwith, or at such time as the court may di¬ 
rect, and answer upon oath as to the amount of money in 
their hands, if any, belonging to such company, or to such 
assignees, lessees, receivers as aforesaid, and also as to the 
probable amount of money received by such agents, con- 


ANIMALS KILLED BY RAILROADS. 


319 


d actors, or employees as aforesaid belonging to such railroad 
company, lessees, assignees, or receivers as aforesaid; and 
if such agent, conductor or employee as aforesaid shall 
answer that he has, or that they have any such money, or 
are in the constant receipt of money as such agent, con¬ 
ductor, or employee as aforesaid, the court shall order such 
agent, conductor, or employee as aforesaid, to pay into the 
clerk’s office of such court, at such times as may be named 
by the court, such portions of the money so held or re¬ 
ceived as aforesaid, not exceeding one-half the amount 
thereof, as may be deemed just by the court, until such 
judgment and costs is fully paid and satisfied. 

Sec. 6 . Any person obtaining a-judgment before a jus¬ 
tice of the peace for any animal or animals killed or in¬ 
jured by the cars, locomotives, or other carriages of any 
railroad in this State, may, upon the filing of a certified 
transcript of such judgment in the office of the clerk of 
the common pleas court of the county in which such an¬ 
imal or animals are killed or injured, and upon the clerk 
of such court entering the same on the order book thereof, 
may upon notice and motion made in such court, as 
specified in the fifth section of this act, shall be entitled to 
the order and proceedings as therein specified. 

Sec. 7. This act shall not apply to any railroad securely 
fenced in, and such fence properly maintained by such 
company, lessee, assignee, receiver, or other person running 
the same. 

Sec. 8. That any agent, conductor or employee who 
shall fail, refuse or neglect to perform or obey the orders 
of the court, as specified in this act, shall be deemed guilty 
of contempt of the court, and fined in any sum not exceed¬ 
ing five hundred dollars, to which may be added imprison¬ 
ment in the county jail for a period not exceeding six 
months. 

Sec. 9. All laws or parts of laws in conflict with the 
provisions of this act, are hereby repealed. 

Sec. 10. Whereas, an emergency exists for the imme¬ 
diate taking effect of this act, the same shall be in force 
and take effect from and after its passage. 


320 


ANIMALS KILLED BY RAILROADS. 


CHAPTER XIX. 

The Responsibility of Railroad Companies for Stock Killed or 
Injured by their Locomotives , Cars or other Carriages 

It is provided by the act approved March 4th, 1863, that 
where any animal or animals are killed or injured by any 
locomotive, cars or other carriage, used on any railroad in, or 
running into or through this State, the owner of such animals 
so killed or injured may bring his action for the value of 
the animal or animals killed, or for the injury done. But 
if the value of the animal or animals killed will exceed two 
hundred dollars, or the injury to such animals will exceed 
that amount, then the action must be brought in the circuit 
court, as justices of the peace, under our statute, have no 
jurisdiction in cases where the amount claimed exceeds two 
hundred dollars, except when judgment is confessed. On 
filing of the complaint, the justice must set the same down 
for hearing *on a day to be designated by him in the future, 
the time must be at least ten days from the time of filing 
the complaint. The justice must issue a summons to the 
constable commanding him to notify the defendant or de¬ 
fendants of the pendency of the action. The constable must 
serve this writ ten days before the day set for the trial, by 
leaving a copy of it with a conductor on any train passing 
into or through said county, or he may serve the same on 
the chief officer of the company, if in the county, but if 
they cannot be found, it can be served on any other officer, 
director, attorney, or general agent of said company, and 
the service will be as binding and of the same effect as if 
the same had been served upon its higher officers. (t) 

In bringing this action, the ordinary rules for pleading 
and practice before justices’ court should be adhered to by 
the parties, with a few exceptions. At commou law, when 
a party brought his action to recover for an animal killed 
or injured by the negligent conduct of another, he had to 
allege in his complaint that the injury occurred without 

(0 The Jeffersonville, Madison & Indianapolis Railroad Company v. Dunlap, 
29 Ind., 426; Act 1861, p. 78; 2 G. & H., p. 62. 



ANIMALS KILLED BY RAILROADS. 321 

fault or negligence on Ms part. And if the proof disclosed 
the fact on the trial that both parties had been negligent, 
and that the fault did not rest altogether with the defend¬ 
ant, the plaintiff could not recover. But it is provided by 
this act “ that on the hearing of such cause, the court or 
jury trying the same shall give judgment for the plaintiff 
or plaintiffs for the value of the animal or animals killed, 
or the injury done, without regard to the question whether 
such killing was the result of willful misconduct or negli¬ 
gence, or the result of unavoidable accident. But if the 
road of the company is securely fenced in, and the fence 
properly maintained by such company, lessee, assignee 
receiver, or other person running the same, then the plain¬ 
tiff cannot recover, unless the company has been guilty of 
negligence without the fault or negligence of the plaintiff. 
But our Supreme Court, in the case of Knight, Adm’r v. 
The T. & W. R. R., held that where the negligence of the 
plaintiff was so gross as to show a willingness that the ani¬ 
mal should be killed, there could be no recovery, though 
the road was not fenced.(ij) 

The act of 1863 was enacted as a kind of a police regu¬ 
lation, for the benefit of the public, to secure safety and 
freedom from obstruction to the passage of carriages along 
the track; and the penalty attached for negligently suffer¬ 
ing their road to go unfenced, is the payment to the owner 
the value of the animal killed, or the damages caused by 
the injury received, (t;) If the killing took place at a point 
where the company could not legally fence their road, they 
will not be liable under this statute,(w) but may be at com¬ 
mon law. It is not, however, necessary for the plaintiff to 
allege in his complaint that the road might have been 
securely fenced, but was not. If the killing or injur}^ 
took place where the road could not be securely fenced, 
that will be purely a matter of defense which the defend¬ 
ant must establish by his evidence, and need not be alleged 
in the plaintiff’s complaint. The plaintiff must show by 

(u) 24 Ind., 402; 29 Ind., 426. ( v ) The New Albany & Salem Railroad Co # 

v. Tilton, 12 Ind., 3—6; Toledo & Wabash Railroad Co. v. Fowler, 22 Ind. 
216. ( w) 30 Ind., 324. 



322 


ANIMALS KILLED BY RAILROADS. 


his complaint that his animal has been killed or injured, 
and that it was done by the railroad company in the county 
where the suit is brought, and the amount of damages. It 
should also show the time when the injury occurred. 

The following form for complaint may be used: 

[No. i.] 

COMPLAINT. 

John Jones 

V. 

Evansville , Terre Haute $ Chicago Railway Company. 

Before Esq. Parrett. 

John Jones complains of the Evansville, Terre Haute & 
Chicago Railway Company, and says that the defendant on 
or about the 24th day of June, 1873, in Vermillion county, 
Indiana, did then and there with its locomotive and train 
of cars, running on and over its road through said county, 
run over and kill one horse belonging to this plaintiff, of 
the value of one hundred and fifty dollars. And the plain¬ 
tiff* says that where said killing of said horse occurred on 
said road, that the same was not securely fenced in; he 
says that by reason of the wrongful act of the defendant in 
killing his said horse, he has been damaged in the sum of 
one hundred and fifty dollars, for which he demands judg¬ 
ment. JOHN JONES. 

It has been frequently held under this and similar statutes 
that all animals killed at each particular time constitute 
separate and individual causes of action.(y) And it is pro¬ 
vided by section forty-nine of the code, that when the com¬ 
plaint contains more than one cause of action, each shall be 
distinctly stated in a separate paragraph and numbered.(A) 
This rule applies to pleadings in justices’ court, and where 
the plaintiff brings his action to recover for animals killed 
or injured by a railroad company. All animals killed at the 
same time must be set out in one paragraph. If there has 
been more than one killing, then he should add as many 

(£0 2 4 Ind., 139 * W 2 res. by G. & H., p. 98, sec. 70; 24 Ind., 139; 20 
Ind., 430; 30 Ind., 324; 27 Ind., 71. 



ANIMALS KILLED BY RAILROADS. 


323 


paragraphs as there has been times of killing. To illus¬ 
trate, suppose the cars run over and kill your horse to-day; 
to-morrow your cow is killed in the same way. You bring 
suit against the company for damages. You must separate 
your cause of action into two paragraphs, or it will be 
defective. If animals killed at different times are improp¬ 
erly joined in one paragraph, the plaintiff will be allowed 
to prove but one cause of action, and a motion to strike out 
all the allegations of other animals killed at different times 
from the one first named may be sustained by the justice. 

Our Supreme Court, in the case of the Bellefontaine Rail¬ 
road Company v. Reed, held the following complaint good:: 

James Reed complains of the Bellefontaine Railway Com¬ 
pany, and says, u that the defendant on or about the 13th 
of July, 1867, at and in said county of Randolph, and State 
of Indiana, by its locomotive and train of cars, then run¬ 
ning on its railroad at a point on its said road in said county 
where its railroad was not securely fenced, ran over and kil¬ 
led two hogs of the value of fifty dollars, whereof he de¬ 
mands judgment for fifty dollars.(m) 

“ JAMES REED.” 

At the hour set for trial, the justice must call the case for 
trial. If the defendant fails to appear, he should be called 
and defaulted, but if he appears and process has been prop¬ 
erly served, the justice should proceed with the trial, unless 
for good cause shown he think best to postpone the same. 
The rules for postponing and continuing the cause is the 
same as in other cases before a Justice of the Peace; either 
party may have a jury trial if they wish. The defend¬ 
ant need to file pleading as he can show any valid defense 
under the general denial which the statute always puts in 
for the defendant in justices’ court. The plaintiff must 
open and close the case; he will, therefore, be allowed to 
introduce his evidence first. He must show in order to 
make out his case that the animal was killed by the loco¬ 
motive or train of cars, or other carriages used on the de- 


(m) 33 Ind., 473. 

22 



324 


NOTES. 


fendants road; that the animal so killed was his animal; 
the time and place of killing. lie must show that the ani¬ 
mal was killed or injured in the county where the suit was 
brought; he must show the value of the property killed or 
the amount of damages he has sustained, by reason of the 
injury to his animal or animals. The defendant will then 
be permitted to disprove, overturn and invalidate what the 
plaintiff has proved. He may show that the road was se¬ 
curely fenced in; he may also show that the killing occurred 
at a point where the defendant’s road could not be legally and 
securely fenced in. He may show that the animal was 
worthless, and of no value; he may also show that the 
plaintiff has been guilty of gross negligence, amounting to 
a willingness to have his animals killed; or, that the plain¬ 
tiff was not the owner of the animals. 

"We have not attempted in this little treatise to give full 
instructions how to proceed in cases of this kind. Our ob¬ 
ject has been to furnish forms for complaints in such cases, 
and to aid Justices of the Peace throughout the State in 
the discharge of their duties in this kind of case, which 
are becoming quite numerous. "When the value of the 
animals killed, or when the damages from the injury at any 
one time exceeds fifty dollars, the plaintiff may bring his 
action before a Justice of the Peace, or in the Circuit 
Court, at his option. Where the road is fenced, if the 
railroad company has been guilty of negligence, and the 
plaintiff has been without fault, he may recover for the 
injury done, etc. For further information on this question 
we refer the reader to our notes. 


The Bellefontaine Railway Company vs. Reed. 33 Ind. 476. 

Appeal from the Randolph Circuit Court. 

Downey, J.—This action was brought before a justice of the peace for the 
value of two hogs of the appellee, alleged to have been killed by a train of cars 
on the road of the appellant. 

There was a default by the defendant, before the justice of the peace, and 
judgment, after an assessment of the damages. The company appealed to the 
circuit court, when there was a trial by jury, finding for the plaintiff, motion for 
a new trial by the defendant, which was overruled, and judgment on the verdict. 
The evidence is made part of the record by a bill of exceptions. 

The errors assigned are, that the court erred. First, in overruling the motion 



NOTES. 


825 


for a new trial; second, in overruling the motion in arrest of judgment; third, 
in giving certain charges to the jury; fourth, in refusing instructions as asked, 
and modifying the same. 

Sixth. The verdict of the jury is not sustained by sufficient evidence. 

Seventh. The verdict of the jury is contrary to law. 

Eighth. The damages are excessive, as found by the verdict. 

It may be remarked, before proceeding to examine the questions on their 
merits, that the third, fourth, fifth, sixth, seventh, and eighth assignments of error 
are all embraced in the first. They are each of them a ground for granting a 
new trial, and are properly assigned as reasons for granting the same, but are 
not necessary, nor, perhaps, properly specified as assignments of error. The 
new trial was asked for the reasons: # 

First. That the verdict was not sustained by sufficient evidence. 

Second. The verdict is contrary to law. 

Third. The damages are excessive. 

Fourth. The court erred in giving instructions one, two, three, and four by 
the court. 

Fifth. The court erred in refusing to give instructions two and three asked 
by the defendant. 

The motion in arrest of judgment was based on the alleged insufficiency of 
the complaint, and as that goes back to the foundation of the suit, we will ex¬ 
amine it first. The complaint alleges that the defendant, on or about the 13 th 
of July, 1867 , at and in said county of Randolph, and State of Indiana, by its 
locomotive and train of cars, then running on its railroad, at a point on its said 
road in said county, where its railroad track was not securely fenced, ran over 
and killed two hogs of the plaintiff, of the value of fifty dollars; wherefore, &c. 

No specific objection to the complaint is pointed out by counsel for the appel¬ 
lant, and we do not observe any. 

The evidence discloses the following state of facts: That the hogs belonged 
to the plaintiff, and were killed by a train of cars on the defendant’s road where 
it passes over lands owned by the defendant. The tract of land was not in¬ 
closed, but there was a fence along the line of the railroad. It was in some places 
six rails high, and in others four and two rails in hight. At some places it had been 
thrown down, and openings made through it in this way. In other places it had 
been removed entirely, and its place supplied with ranks of wood; and then the 
wood had been taken away in some places, and in others it had been burned 
away, leaving openings of from two to five rods, some of which had been open 
for a year, and others had been made more recently. 

The Indianapolis, Pittsburg, and Cleveland Railroad Company vs. Mustard. 
34 Ind. 50 . 

Appeal from the Madison Common Pleas. 

Worden, J.—This was an action by the appellee against the appellant for 
injuring and killing a cow belonging to the plaintiff, by the engine and cars of 
the appellant, upon her railroad, where the same was not properly fenced. Trial 
by the court, finding and judgment for the plaintiff, a motion for a new trial 
being overruled. 

It appears by the evidence that the plaintiff’s cow, being upon the railroad 
track, was struck by the pilot of an engine, and carried or dragged some dis- 


826 


NOTES. 


tance along the track, and then thrown off; that one of her legs was cut entirely' 
off, except a small portion of the skin, and another leg broken ; and that she 
was so badly injured that she could not recover. She lay in this condition a day 
or two, when the plaintiff killed her, but did nothing further with her, and she 
was afterwards buried by the employees of the defendant. 

During the progress of the trial, the defendant, for the purpose of “ fixing the 
damages,” offered to prove the value of the cow after she was struck, but the 
testimony being objected to, it was excluded. Under the circumstances, we 
cannot say that this was error. 

The plaintiff, out of motives of humanity, doubtless, and to end her misery, 
killed the cow, but received no benefit whatever from her defunct carcass; and 
then she vwxs taken charge of by an employee of the defendant, who performed 
her final obsequies by consigning her to the earth, where she could be a source 
of profit to no one. Had the plaintiff received some benefit from the cow after 
she was hurt or killed, the question would have been a different one. 

We take it to be quite clear on principle, that if the railroad company, or any 
private individual, kill the animal of another, under circumstances that render 
the company or the individual liable therefor, rule of damages will be the 
value of the animal, unless the case calls for vindictive or punitory damages; 
and these damages are not to be diminished by the value of the dead animal, 
unless the owner thereof in some way derives an actual benefit therefrom, or 
does some act evincing an election to appropriate the dead animal to himself, 
A man whose animal is wrongfully killed is not obliged to take the dead animal 
in part payment for the living one. 

We regard the case before us as substantially one of killing. The cow must 
have died from her injuries and the defendant is responsible for her full value. 
We have examined the evidence in the cause, and are satisfied that the finding 
of the court, in respect to the damages assessed, and also in respect to the lia¬ 
bility of the defendant, accords with the preponderance thereof. 

The judgment below is affirmed, with costs and five per cent, damages. 

The Jeffersonville, Madison, and Indianapolis Railroad Company v. Parkhurst. 
34 Ind. 501 . 

Appeal from the Johnson Common Pleas. 

Pettit, C. J.—This suit was brought before a justice of the peace, by the 
appellee against the appellant, for killing a cow by its train of cars. There was 
a judgment for the appellee before the justice, and appellant appealed to the 
said court of common pleas. Trial, and judgment for appellee in that court, 
from which it is brought to this court by the appellant. 

The errors assigned in the record are, first, that the court erred in giving in¬ 
structions one,4wo, three, four, five and six, excepted to by appellant; second, 
the court erred in refusing to give instruction one, asked by appellant, and ex- 
excepted to; third, that the verdict was contrary to the evidence; fourth, that 
the court overruled the motion of appellant for a new trial; fifth, the court 
overruled demurrers to the first and second paragraphs of the complaint. 

Upon the saying, that the first shall be last and the last shall be first, we will 
commence with the last assignment; and upon this, it is enough to say, that as 
no objection in any form was taken to these paragraphs in the common pleas 


NOTES. 


327 


court, though they were demurred to before the justice of the peace, and the 
demurrer by that officer overruled; we cannot inquire as to their sufficiency. 
We cannot reverse, affirm, or modify the rulings or judgment of a justice of the 
peace, brought before us in this form. We can only take notice of the proceed¬ 
ings of the court of common pleas. 

As to the fourth assignment, we think there was no error in overruling the 
motion for a new trial. 

As to the third assignment, we have only to say, that it is not known to our 
law or practice as an assignment of error, and can only be regarded as an argu¬ 
ment or reason under the fourth assignment of error. 

As to the second assignment of error—refusing to give instruction asked, 
which was as follows: "If the jury find, from the evidence, that the cow in 
question came upon the railroad track, and was killed, within the corporate 
limits of the city of Franklin, then the plaintiff cannot recover on the first para¬ 
graph of the complaint hereinthere was no error in refusing to give this 
asked instruction. The Indianapolis and Cincinnati R. R. Co. vs. Parker, 29 
Ind. 471 , and cases cited there. 

The first assignment of error is the giving of instructions, which are as follows: 

" 1 st. This is an action by the plaintiff against the defendant, to recover 
damages for the killing of a cow on the track of the defendant in Johnson 
county, and the plaintiff sets up in his complaint two grounds of recovery. 

“ 2 d. The first paragraph of the complaint alleges that the cow was killed at 
a point on the railroad where it was the duty of the defendant to fence against 
stock, and that the defendant had not so fenced in her track, by reason of which 
the cow strayed upon the track and was killed. 

" 3 d. The second paragraph of the complaint alleges that the defendant so 
carelessly and negligently ran her locomotive and cars over the road, that the 
cow was killed by reason of such negligence in the defendant. 

" 4 th. To enable the plaintiff to recover on the first paragraph of the com¬ 
plaint, he must show that the place where the cow strayed upon the railroad 
was at a point where the company were bound to fence the road, and that such 
point was not so fenced; or that such point was where the company were bound 
to maintain a cattle-guard, and that such guard was not in proper condition to 
keep stock off the track of the road. 

" 5 th. If you should find from the evidence in this case that the place where 
the cow got on the track was inside the corporate limits of the city of Franklin, 
you must further find that such place was not at a crossing of any street or alley, 
or at a point where, from the necessary use of the grounds, it would be unlawful 
or unreasonable to require the railroad company to maintain a fence, before the 
road would be liable for not fencing. 

" 6 th. The railroad company would not be bound to erect and maintain 
cattle-guards at the crossings of the public streets and alleys inside the corporate 
limits of the city of Franklin, nor would said road be bound to fence the lots 
lying on either side of her track between the crossings of such streets or alleys 
over the railroad; but beyond such crossings, the road would be bound to main¬ 
tain her fences and guards, the same as if running outside the corporation.” 

We think and hold that there was no error in giving these instructions, and 


328 


NOTES. 


that they were clearly the law of, and proper ill, the case. The appellant could 
not complain of them. 

The judgment is affirmed, with ten per cent, damages and costs. 

The Toledo, Logansport, and Burlington Railway Company vs. Nordyke. 27 
Ind. 95 . 

Appeal from the White Common Pleas. 

Frazer, J.—In Hingle vs. The State, 24 Ind. 28 , we defined a special statute, 
in the sense of the 22 d and 23 d sections of article four of the constitution of the 
State, to be “ such as at common law the courts would not notice, unless it were 
pleaded and proved, like any other fact.” The chief question before us now is, 
whether so much of the act of March 4 th, 1863 , (Acts 1863 , p. 25 ) as provides 
for the enforcement of judgments rendered under the act, is in conflict with the 
sections of the constitution referred to. This question can ohly be determined in 
the negative, if we adhere to the doctrine of Hingle vs. The State. That doc¬ 
trine is not questioned in the argument; and inasmuch as the subject then re¬ 
ceived veiy close attention and consideration, with the aid of a careful and 
exhaustive argument against the validity of the statute then under consideration, 
we do not now re-examine it. 

In the present case, the proceeding was to enforce the judgment of a justice 
of the peace. There was no revenue stamp upon the Justice’s certificate to his 
transcript. We think that none was required by the act of congress. Prather 
vs. Pritchard, 26 Ind. 65 . 

The judgment is affirmed, with costs. 

The Indianapolis, Pittsburg, and Cleveland Railroad Company vs. Marshall. 
27 Ind. 300 . 

Appeal from the Marion Circuit Court. 

Elliott, J.—Suit by Marshall against the railroad company to recover the 
value of eleven sheep killed by a locomotive and train of cars of the company, 
while running on the track of the railroad, said road not being securely fenced 
at the place where the sheep passed upon the road and were killed. 

The railroad was constructed under a special charter granted by the general 
assembly before the passage of the act of 1853 , “to provide compensation to 
the owners of animals killed or injured by the cars,” &c., “of any railroad com¬ 
pany in this State.” 

Trial by the court; finding and judgment for the plaintiff for fifty-five dollars. 
A motion by the defendant for a new trial was overruled, as was also a motion 
in arrest of judgment. The case originated before a justice of the peace, and 
was appealed to the circuit court. 

The railroad company is the appellant here. There was no evidence of any 
negligence or want of care on the part of those having charge of the locomotive 
and train. The record shows that evidence was given on the trial, that “ loco¬ 
motives and cars, while in motion, cannot be thrown off the track by running 
over small stock, such as sheep or hogs; that the wheels and machinery of a 
train will crush through all such animals, without being impeded in any degree, 
and without endangering the train.” 

It is claimed by the appellant’s counsel that, as the appellant was incorporated 


NOTES. 


329 


under a special charter, in 1848 , containing no provision requiring the company 
to fence its roadway, or in default thereof making it liable, without regard to the 
question of negligence, to compensate the owners of animals which might be 
killed or injured by the trains of said company, the present enactments on that 
subject can only be sustained, as to the appellant, as a police regulation for the 
protection of human life, and not for the purpose of compensating the owner of 
the animals so killed or injured; and, hence, that the law giving compensation 
for animals so killed or injured on railroads not securely fenced, cannot, as 
against the appellant, apply to all kinds of animals, but only to those of such 
size as, when run upon or over, would be liable to endanger the train, or throw 
the cars off the track, and thereby endanger the lives of persons traveling on 
such train; that as the evidence in this case showed that no such danger could 
result from the presence of sheep on the track, the finding and judgment should 
have been for the appellant. 

This is the only question in the case. It has been repeatedly held by this 
court, that the act in question (Acts 1853 , p. 113 ) is in the nature of a police 
regulation, the principal object of which is the protection of the lives of passen¬ 
gers. This object is sought to be secured by making railroad companies, whose 
roads are not securely fenced, liable for all animals killed or injured thereon by 
their trains, without regard to the question of negligence. This absolute liability 
is in the nature of a penalty for failing to fence their road. It presents an in¬ 
ducement to railroad companies to fence, by making it their interest to do so, to 
avoid the penalty. If it be admitted that the law can only be sustained, as 
against the appellant, as a police regulation, and that the presence of sheep on 
the track could not possibly endanger the lives of passengers, still the conclusion 
drawn therefrom by the appellant’s counsel does not legitimately follow, and 
cannot be sustained. As a police regulation for the preservation of human life, 
it was competent for the law-making power to compel railroad companies to 
fence their roads, by the imposition of any reasonable penalty that might be 
deemed necessary to accomplish the object. Indeed, no valid reason is perceived 
why they might not be prohibited from running trains on unfenced roads, if such 
a prohibition were deemed necessary. The penalty imposed by the present law 
is, that when their roads are not securely fenced, railroad companies shall be 
liable to the owner for the value of animals killed, or for the injury done them, 
without regard to the question of negligence. No distinction is made as to the 
kind or size of animals; all are included, or at least all that would be kept 
from the roadway by a reasonable fence. 

In the case at bar, it is not claimed that the road, at the time, was securely 
fenced against animals of such size as, if run upon or over, would be liable to 
throw trains off the track, and thereby endanger human life; and without such 
showing, we think the company is not in a condition to present the question as 
to whether more is required. 

The judgment is affirmed, with costs. 

The White Water Valley Railroad Company vs. Quick, 30 Ind., 384 . 

Appeal from the Franklin Common Pleas. 

Frazier, J.—This was a suit against the appellant, to recover the value of 
a Fog of the appellee killed by the appellant’s cars, its railroad not being fenced. 


330 


NOTES. 


The case originated before a justice of the peace, and though there is only 
twenty-five dollars involved the case is lawfully here. 

The complaint alleged that “a locomotive owned and used by said defendant, 
on its railroad, in the county of Franklin, and State of Indiana, on, etc., struck, 
ran against and over, and killed one hog of the plaintiff/ 7 and that at the time 
and place of killing the road was not fenced. It is argued that this does not 
show that the animal was killed in Franklin county, or that the appellant com¬ 
mitted the injury. We think that by such liberality of construction as pleadings 
before justices of the peace should receive, the complaint is sufficient in these 
particulars. It is also urged that the complaint should have averred that the 
road could properly have been fenced at that place; but we think that such an 
allegation would have been wholly unnecessary. Affirmative matter of defense 
comes from the defendant, and need not, and indeed should not, be anticipated 
by the complaint. 

The evidence disclosed that at the place where the hog was killed the railroad 
was situated on the old tow-path of the White Water Valley Canal, on the south 
side of the canal, and that there was no fence on the north side of the railroad. 
The evidence did not expressly disclose whether the canal was in use for any 
purpose or not. 

It might have been inferred from the evidence that as a thoroughfare it was 
abandoned—as is notorious. Railroads are not apt to occupy the tow-paths of 
canals in use as such. Then, was the appellant bound to fence at that place ? 
We think so. The argument that the canal is a highway, and could not be law¬ 
fully obstructed by a fence, would do well enough in a proper case. But aban¬ 
doned works of that character are probably not meant to be protected as high¬ 
ways. The verdict is right. .The judgment is affirmed, with ten per cent.dam¬ 
age and cost. 

In the Jeffersonville, Madison and Indianapolis Railroad Company vs. Dun¬ 
lap, 29 Ind. 426. 

Appeal from the Johnson Common Pleas. 

Frazier, J.—This was a suit against the appellant for the killing of the ap¬ 
pellee’s horse by the cars of the appellant. The complaint was in two para¬ 
graphs. The first alleged that the railroad was not fenced “ at the time when 
and place where ” the horse was run over and killed. By the second paragraph, 
the right of action bottomed upon the negligence of the defendant’s servants. 
The sheriff’s return to the summons was as follows : “ Served the within on 

James H. McClellan, Jeffersonville, Madison and Indianapolis Railroad Agent 
at Franklin, and Owen Frost, Jeffersonville Railroad Passenger Conductor, by 
reading to and in the hearing of the same.” There was a motion overruled to 
set aside the return, for the following reasons: first, because it was insufficient; 
second, it should have been served by copy, on a conductor of a train passing 
through the county. The first of these objections was too general; it pointed 
out no particular objection to the return, and, therefore, rightly disregarded. 

A different rule would sanction a practice tending to mere vexation, and hin¬ 
dering instead of aiding in the administration of justice. A blind motion, sug¬ 
gesting no definite ground of objection to the return, would put the court upon 
a general search, and operate as a trap. When, if the defect were pointed out. 


NOTES. 


331 


it might be cured by speedy amendment by the officer, or if that could not be 
done, it is fair to suppose that the court would sustain the motion, and thus avoid 
any opportunity for the vexation and delay of an appeal to this court. Such 
questions, merely dilatory, and in no manner touching the merits of the contro¬ 
versy, are not favored by previous decisions of this court. 

The second objection made to the sufficiency of the return is definite. But 
we think it was correctly overruled. The third section of the act of 1863, (p. 
187) authorizes service, by copy, upon any conductor of a train passing through 
the county, in actions for killing or injuring animals upon railroads not securely 
fenced; but that statute does not require such service. It does not, therefore, 
render insufficient service upon any agent of the corporation, as authorized by the 
thirty-sixth section of the code, and by the act of March 4, 1853. Sess. Laws, 
1853, p. 102, and Laws Spec. Sess., 1861, p. 78. 

We do not overlook the fact that the return of service upon the station agent 
was defective, in not showing that the chief officer of the corporation was not 
found in the county. That objection was not made below, and is not made 
even here. 

But there is still another reason why the motion to set aside the service upon 
the second ground should have been overruled. The second paragraph of the 
complaint was the ordinary action for negligence, and there is nothing in the 
act of 1863, relied upon by the appellant, which at all touches the subject of 
process in such case. The defendant pleaded, first, general denial; second, to 
the first paragraph of the complaint, that the horse was killed without any fault 
or negligence of the defendant, and because of gross negligence of the plaintiff. 
It is assigned for error, that the demurrer to this second paragraph was sustained. 

The statute of 1863, already referred to, made the defendant liable, the road 
being unfenced, “ without regard to the question whether such killiug was the result 
of wilful misconduct or negligence, or the result of unavoidable accident.” Sec. 
5. Undoubtedly the misconduct and negligence of the railroad company is meant 
to be referred to by the statute. It was intended that the absence of a sufficient 
fence should have the effect to create a liability for the destruction or injury of 
animals by a railroad train that negligence or wilful misconduct in the manage¬ 
ment of the train would otherwise involve. And, indeed, the act of 1863 was 
passed in full view of repeated decisions of this court construing the act of 1853, 
which uses the language, as creating the liability, even though ‘the plaintiff had 
been guilty of negligence contributing to produce the injury, by permitting the 
animal to wander upon the lands adjoining the track of the railroad. M. & I. 
R. R. Co. vs. Whiteneck, 8 Ind. 217; I. & C. R. R. Co. vs. Townsend, 10 Ind. 
38; N., A. & S. R. R. Co. vs. Yelton, 12 Ind. 3; same vs. Maiden, Ind. 10; 
I. & C. R. R. Co. vs. Guard, 24 Ind. 222; same vs. McKinney, 24 Ind. 283. 
To this extent, at least, then, the act of 1863 must be held to go, and so far the 
question ought not longer to be deemed open to discussion here. 

But in Knight, Adm’r, vs. The T. & W. R. R. Co., 24 Ind. 402, it was held 
that where the negligence of the plaintiff was so gross as to show a willingness 
that the animal should be killed, there could be no recovery, though the road 
was not fenced. So, very clearly, if the owner drives his animal upon the track, 
that it may be killed, or allows it to wander under such circumstances as justify 
the conclusion that he deserves that result, it cannot be supposed that the legis- 


332 


NOTES. 


lature intended that the railroad company should be liable, on account cf its 
failure to fence. 

These would be cases of an exposure of the property, with the fraudulent in¬ 
tent to obtain its value by suit; and the courts are not at liberty to hold that by 
this statute the legislature meant to sanction such iniquity. The language em¬ 
ployed indicates no such purpose. 

The averment of the paragraph of the answer under examination is, that the 
horse “ was killed by and on account of gross negligence of said plaintiff, and 
without any fault or negligence of said plaintiff, and without any fault or negli¬ 
gence of said defendant, its servants or employees.” 

It is argued that this general allegation of gross negligence is not sufficient; 
that it is but a conclusion; that the facts should have been stated, and The City 
of Buffalo v. Holloway, 3 Seld., 493, and Seymour v. Maddox, 16 Q. B., 326, 
are cited in support of the position. We think that those cases do not go to the 
point. The gravamen in each of those cases was, that by virtue of a contract it 
became the duty of the defendant to do certain things which he neglected to do, 
whereby the plaintiff was damaged. It did not appear, from the facts stated, 
that the duty was imposed, and it was merely held that the averment, that the 
duty existed, was alleging a conclusion of law, and not of fact 

This was in accordance with a rule of pleading long and well settled. But 
was it a question of law, or a question of fact, or a mixed question whether 
gross negligence existed ? If a question of fact, then the averment was the 
averment of fact to be proved, and to have alleged the particular circumstances 
justifying the conclusion might have violated that familiar rule of pleading 
which forbids alleging the evidence. This rule is, however, to be harmonized 
with another, viz., that a general statement of facts, which admits of almost any 
proof, is bad. 1 Chid. PI. 232. 

These rules define two extremes, both of which must be avoided. Regarding 
the averment as a conclusion of fact and not of law, has the pleader, in this in¬ 
stance, avoided the latter extreme ? Is the allegation too general ? The ap¬ 
proved forms in the books of precedents seem to justify some generality in the 
averment of negligence, that is, the particular facts constituting negligence are 
not alleged. 

So, among the forms made sufficient by our statute, number 14 is one for a 
complaint against the owner of a stage coach for injury to a passenger by the 
carelessness of the driver, in which the allegation is, “ that the stage was upset 
by the carelessness of the driver, whereby,” etc., from which it may, by liberal¬ 
ity of construction, be understood that carelessness in driving was intended to be 
stated as the cause of the injury. So far as we are aware, all the forms, and - 
certainly every rule of pleading which can be applied to the subject, while dis¬ 
pensing with the necessity of a prolix statement of the particulars constituting 
negligence, do require that the act which was characterized by negligence shall 
be stated. 

What did the plaintiff in this case do with gross negligence ? or what act did 
he so omit? The fact that the horse starved to death because he did not feed 
him, or persished in a swamp into which the plaintiff had driven him, or died 
because of reckless driving, or any other of the thousand modes by which gross 
carelessness may destroy an animal’s life, without the intervention of any rail- 


NOTES. 


383 


i oad, might be proved to sustain this paragraph of the answer quite as well as 
that the horse was blind and had been willingly exposed to collision with rail¬ 
road trains, passing every hour, as in the case of Knight v. The Y. & W. R. R. 
Co., already cited. The pleading is so utterly uncertain and ambiguous that it 
cannot be told from it whether the pleader intended to deny the complaint or to 
confess and avoid it. If the former, then his proof was admissible under the 
general denial; if the latter, it should have so appeared upon its face by such 
allegations as would have shown (the killing of the horse by the cars being ad¬ 
mitted) that the gross negligence of the plaintiff produced the fatal result. Even 
then it might be a question whether the facts would constitute a bar to the ac¬ 
tion. The question would then be whether gross negligence of the plaintiff, in 
exposing the horse to injury, is always sufficient to show a willingness or desire 
that injury may be inflicted. 

But that question need not now be decided. The evidence of the plaintiff 
was not definite as to whether the animal was killed before or after the suit was 
begun. The animal was killed in the forenoon of the day that the suit was 
brought October nth, acccording to one witness, while another thinks he was 
killed in September. It was not put in proof when the suit was commenced. 
The appellant thinks that a new trial should have been granted because the evi¬ 
dence did not show that the horse was killed before the commencement of the 
suit. There is nothing whatever in the point. That question was not in issue. 
Smith v. Holmes, 19 N. Y. 271. 

The appellant attacks the first paragraph of the complaint because it does not 
allege that the railroad was not fenced at the place where the animal entered 
upon it. We need not pass upon the question of the sufficiency of this para¬ 
graph. The second paragraph was good, and the evidence was sufficient to sup¬ 
port it in this court. 

The judgment is affirmed, with ten per cent, damages and costs. 

73. An act to provide compensation to owners of animals killed or injured 
by the cars, &c., of railroad companies. 1 R. S. (G. & H.) p. 522. 

74. Summons in such case may be served on a conductor, &c. Id. 523. 
See Process. 

75. Act not to apply to railroads securely fenced. Ibid. See Boundaries, p. 
169; Fences, p. 437. 

76. The act is in the nature of a police regulation, and constitutional. The 
N. A. & S. Railroad Co. vs. Felton, 12 Ind. 3, 20; Id. 38, 49, 502, 549; 12 
Id. 560, 406, 478, 485; 16 Ind. 84. See Constitutional Law, p. 216, \ 95. See 
8 Ind. 217. 

77. The act is for the benefit of the public, to guard against injuries to pas¬ 
sengers, and companies cannot divest themselves of responsibility by making 
private contracts with the bondholders along the road, by which the latter agree 
to make and keep up fences. N. A. & S. Railroad Co. vs. Maiden, 12 Ind. 
IO; Id. 3. 

78. The act of 1859 is prospective, only in its operation, and hence only ap¬ 
plies to animals killed or injured after the passage of the law. The Indianapo¬ 
lis, &c., Railroad Co. vs. Kercheval, 16 Ind. 84. 

79. Notice .—The act of March 1, 1853, (acts 1853, p. 113,) which provides 
that in actions for compensation for animals killed or injured by cars, locomo-. 


334 


NOTES. 


tives, or carriages of any railroad company in this State, the justice of the peace 
before whom such action is prosecuted, “ shall cause at least ten days notice to 
be served on the railroad company defendant by service of summons by copy on 
any conductor of any train passing through said county,” is confined to actions 
against the coiporation; such service of process will not, when there is no ap¬ 
pearance, authorize a judgment against individuals, although they may represent 
themselves to be lessees, and to have charge of the rolling stock of the road. 
Write vs. Gossett, 15 Ind. 119. See process. 

80. The act of 1853 does not apply to actions commenced in courts of com¬ 
mon pleas and circuit courts, but only to such as are brought in justices courts. 
The Evansville, &c., Co. vs. Hibbard, 14 Id. 509. But by the amendatory act 
of 1859, p. 105. where the damages exceed fifty dollars, the party may bring his 
suit in the circuit or common pleas court, and recover the value of the animal 
killed. 

The Indianapolis, &c., Co. vs. Kercheval, 16 Ind. 84. 

81. A suit brought in the common pleas against a railroad company for kill¬ 
ing cattle, is not governed by the statute of 1853, but by the common law rules. 
The Jeffersonville Railroad Co. vs. Marion, 10 Ind. 416; 11 Id. 365, 458. 
Hence, the complaint must charge negligence, unskilfulness, or wilful miscon¬ 
duct on the part of the company or their agents, and that such negligence, &c., 
was the proximate cause of the injury. Ibid. 

82. On appeal to the circuit court from a judgment by a justice of the peace, 
against a railroad company for killing stock, a judgment for double damages and 
a docket fee, under § 3 of the act of March 1, 1853, is erroneous. The Indi¬ 
ana, &c., Railway Co. vs. Gapen, 10 Ind. 292; Id. 182; The Jeffersonville 
Railroad Co. vs. Daugherty, Id. 549: 11 Ind. 375. 

83. Under the act of March 1, 1853, though the owner of the animal be not 
an adjoining proprietor, and be guilty of negligence in permitting it to stray 
upon land adjoining the road, he may recover, if the company has failed to 
comply with the requirement of the statute. The Indianapolis, &c., Railroad 
Co. vs. Townsend, 10 Ind. 38; The Jeffersonville Railroad Co. vs. Applegate, 
Id. 49; The Indianapolis, &c., Railroad Co. vs. Meek, Id. 502; The Jefferson¬ 
ville Railroad Co. vs. Daugherty, Id. 549; 12 Ind. 560, 406, 478, 485. 

84. But should a person voluntarily place his animal upon the track, it seems 
he could not recover, but might, perhaps, be regarded as having abandoned his 
property. 10 Ind. 38. 

85. Under the act of March 1, 1853, the owner, though he may be passively 
a wrong-doer, by suffering his animal to run at large, may yet recover. N. A. 
& S. Railroad Co. vs. Maiden, 12 Ind. 10; Hart vs. Indianapolis & Cincinnati 
Railroad Co., 12 Ind, 478; Id. 552; 13 Id. 258; Id. 373 

86. An act >vas passed on the nth of May, 1852, providing that when any 
animal should be killed or injured by any vehicle run upon a railroad in this 
State, the owner might recover for his loss in a suit against the company, with¬ 
out proof of negligence, where the injury occurred upon a part of the road left 
by the company unfenced. The act did not designate any tribunal in which the 
remedy should be sought. On the 1st of March, 1853, another act was passed 
authorizing the prosecution in such cases to be instituted before a justice of the 
peace, and prescribing the mode of proceeding. The second section enacted 


NOTES. 


335 


<hat on the hearing of the cause, the justice or jury trying the same should give 
judgment for the plaintiff for the value of the animal destroyed or injury in¬ 
flicted, without regard to the question whether the injury or destruction was the 
result of willful misconduct or negligence, or of unavoidable accident. The 
latter act expressly repealed the former, saving, however, pending suits. 

Held, that the acts were in pari materia , were enacted to effect the same ob¬ 
ject, and were to be construed together. 

Held, also, that under each of them, railroad companies, whose roads were 
not fenced, were liable for the value of all stock straying without the owner’s 
fault from adjoining land, killed or injured by the cars or locomotives, without 
regard to the question of negligence, misconduct, or inevitable accident. Wil¬ 
liams v. The New Albany, etc., R. R. Co., 5 Ind., ill j The Lafayette, etc., R. 
R. Co., v. Shriner, 6 Ind., 141. 

87. There is nothing peculiar in the character of the Indianapolis and Cin- 
nati Railroad Company which would prevent the legislature from requiring her 
to pay for the killing of animals upon her road, in default of keeping it fenced. 
The Indianapolis, etc., R. R. C., v. Kercheval, 16 Ind. 84. 

88. The cost of making and keeping the fence in repair, or the amount paid 
in the way of damages for stock killed, does not “ detract from or effect the 
profits of the corporation,” in the sense intended by her charter. Ibid. 

89. Query ? Whether a railroad company can be compelled to maintain one- 
half of a partition fence separating its roadway from an adjoining farm. The 
Evansville, &c., Co. vs. Fitzpatrick, 10 Ind. 120. 

90. Where owner must maintain fences. —Where the owner of land through 
which a railroad runs has received from the company, in the assessment of dam¬ 
ages, an agreed compensation for erecting and maintaining fences between the 
road and his land, and fails to maintain such fences, he cannot, if by reason of 
such failure an animal is killed by the cars of the company, recover for the same 
without proof of negligence. Terre Haute, &c., Railroad Co. vs. Smith, 16 
Ind. 102. 

91. Cattle Pits. —The statute does not expressly require the construction of 
cattle pits at road crossings, but perhaps they may be fairly embraced under the 
general term, fence. The N. A. & S. Railroad Co. vs. Pace, 13 Ind, 411. 

92. A railroad company, after having obtained the right of way for its road, 
is entitled to the exclusive possession of such way and stands to adjoining pro¬ 
prietors, (where no statute has changed the relation) in the common relations 
existing between proprietors of land bordering on each other; and such proprie¬ 
tors, at common law, are not bound to fence against each other, but each is 
bound to keep his stock upon his own land. Williams vs. The New Albany and 
Salem Railroad Co., 5 Ind. III. 

93. Suit against a railroad company to recover for cattle killed by their en¬ 
gines. The right to recover rested on the following facts: Near where the 
stock was killed was a small brook, over which the company had built a cul¬ 
vert. Below the culvert the plaintiff had a pasture in which he kept his cattle. 
Across the brook, below the culvert, be had made a fence of long poles. A 
flood came and floated driftwood through the culvert against the fence. To 
prevent the accumulation of drift above the culvert in such quantities to en¬ 
danger its safety, the company aided in its passage. At sunset, the plaintiff 


336 


NOTES. 


knew the exposed situation of his fence, but would not remove his cattle. At 
night, the fence being borne away, the cattle passed upon the road and were 
killed. Held, that the plaintiff could not recover. The I. & C. Railroad Co. vs. 
Wright, 13 Ind. 213. See 16 Ind. 102. 

94. A railroad company will not be compelled, by the act of March I, 1853, 
to pay for stock running at large, killed, or injured at a place on their road 
where a fence ought not to be erected. The open space in front of a mill, 
necessary for the convenience of shipment, is such a place. Proof that the kill¬ 
ing or injuring occurred at or near the mill, brings the case prima facie within 
this rule, and puts it upon the plaintiff to show that it occurred at a place where 
a fence would not be improper. I & C. Railroad Co. vs. Kinney, 8 Ind. 402; 
9 Id. 397. See 6 Ind. 141. 

95. In a suit against a railroad company to recover damages for stock killed 
by their cars, at a point on their road where a highway had been established, which 
highway, though shown to have been abandoned by the public for two years, was 
not shown to have been vacated, the plaintiff must prove misconduct or negli¬ 
gence on the part of the company or their agents. Indiana, &c., Co. v. 
Gapen, 10 Ind. 292. 

96. In a suit against a railroad to recover for stock killed, the allegation that 
the road was not fenced is a material one, must be proved where such a fact is 
an element in the right to recover. The I. & C. Railroad Co. vs. Wharton, 13 
Ind. 509; 14 Ind. 30; 15 Id. 486; 16 Ind. 435. 

97. Speed. —The law requires that a train of cars, in passing through a town, 
shall be run with a greater degree of care, and hence at a less rate of speed 
than is generally observed in the movement of the train. The Lafayette, &c., 
Co, vs. Shriner, 6 Ind. 141. 

98. If an animal is wrongfully on the track of a railroad, but is injured 
while on the same, by the gross negligence or willful misconduct of the com¬ 
pany’s agents, the company is liable. Ibid. See Animals. 

99. The simple killing of an animal by the cars of a railroad company is 
not prima facie evidence of negligence on the part of their employees. The 
Indianapolis, etc., R. R. Co. v. Means, 14 Ind., 30. 

100. It is no defence to an action for killing a horse by a railroad company, 
if the horse was wantonly killed, that it occurred at a point where the road was 
properly fenced; nor that the company had paid the owner of the land on 
which it was killed for fencing the road as a part of the consideration for the 
right of way through his farm. N. A. & S. R. R. Co. v. McNamara, 11 Ind. 543. 

101. Fright. —A railroad company is not liable, under the statute of 1853, 
for an injury to stock resulting from fright at their cars, where the animal was 
not touched by any car, locomotive, or other carriage belonging to the company. 
Peru, etc., R. R. Co. v. Hasket, 10 Ind., 409. 

102. Freight Trains. —The statute awarding damages to the owners of ani¬ 
mals killed or injured by the rolling stock of any railroad company applies to 
animals killed by freight as well as passenger trains. The I. & C. R. R. Co. v. 
Smelling, 16 Ind., 435. 

103. Suit for the value of animals killed by the cars of a railroad company. 
The evidence showed that the animals were killed between two named geo¬ 
graphical points, and upon same railroad, by the rolling stock thereof, but did 


NOTES. 337 

not show, in terms, that they were killed in Shelby county, nor by the railroad 
company, defendant. 

He/d, that as the court below knew judicially the boundaries of the county, it 
will be presumed that the first point was correctly determined. Indianapolis, 
etc., R. R. Co. v. Moore, 16 Ind., 43. 

104. In a suit against a railroad company for damages for injuring cattle, the 
witnesses estimated the value of the property variously from thirty to forty 
dollars. 

Held, that the court might find the value to be thirty-seven dollars. Madison, 
etc., R. R. Co. v. Herod, 10 Ind., 2. 

120. To provide compensation to the owners of animals killed, etc. Act 
March 4, 1863, p. 25. 

121. The provisions of the act of March 4, 1863, (Acts 1863, p. 25), for the 
enforcement of judgments against railroad companies for stock killed, are not 
repugnant to sections 22 and 23 of article 4 of the constitution. The Toledo, 
etc., R. R. Co. v. Nordyke, 27 Ind., 95. 

122. The statute requiring railroads to be kept fenced is not intended to 
change the common law rule as to the duty of the owner of cattle, nor merely 
to give them compensation for animals killed or injured on the track where the 
road is not fenced, but chiefly as a police regulation for the benefit of the public, 
to secure safety and freedom from obstructions to the passage of carriages along 
the track. The Toledo, etc., R. R. Co. v. Fowler, 22 Ind., 316. 

123. Same .—Where a railroad company has caused its road to be securely 
fenced, and has exercised reasonable care and vigilance to keep it so, and the 
fence is thrown down and left down by third persons, without the authority or 
knowledge of the company, whereby cattle stray upon the track and get killed 
or injured before the company has notice, the company is without fault and not 
liable for the stock thus killed or injured. Ibid. 

124. The statute upon the subject of the liability of railroads for stock killed, 
where the road is not fenced, gives to the want of a proper fence the same effect 
that negligence in the management of the train would otherwise involve. The 
act of 1863, upon this subject, having been passed in view of the decisions of 
this court, that the liability under the statute of 1853, upon the same subject, 
extended to cases where the negligence of the owner contributed to the injury, 
by permitting the animal to wander upon the lands adjoining the track, the new 
act must be construed in the same way. The Jeffersonville, etc., R. R. Co. vs. 
Dunlap, 29 Ind. 426; Madison, etc., R. R. Co. vs. Whiteneck, 8 Ind. 217; In¬ 
dianapolis, etc., R. R. Co. vs. Townsend, 10 Ind. 38; New Albany, etc., R. R. 
Co. vs. Yelton, 12 Ind. 3; the same vs. Maiden, 12 Ind. 10; Indianapolis, etc., 
R. R. Co. vs. Guard, 24 Ind. 222; the same vs. McKinney, Ind. 283. 

125. Same .—But if the conduct of the owner is of such a character as to jus¬ 
tify the belief that he desired the injury to happen, the railroad company will 
not be liable, though the road is not fenced. The Jeffersonville, etc., R. R. Co. 
vs., Dunlap, 29 Ind. 426; 24 Ind. 402. 

126. Where a railroad is not securely fenced, the company is liable for stock 
killed by its cars without reference to the question of negligence (1 G. & H. 
522), although the road is at the time operated by a receiver duly appointed by 


838 


NOTES. 


a competent court. McKinney vs. The Ohio, etc., R. R. Co., 22 Ind. 99; 20 
Ind. 498. 

127. By statute, in this State (1 G. & H. 342), railroad companies are liable 
for animals, but not persons, injured upon their roads, where they might be but 
are not fenced, irrespective of the question of negligence. Thayer vs. The St. 
Louis, etc., R. R. Co., 22 Ind. 26. 

128. But where a proper fence is maintained, and in places where it is not 
required to be, they are not liable for animals injured except as to common law, 
where there is negligence on their part, and the negligence of the owner of the 
stock does not contribute to its immediate injury. Ibid. See 18 Ind. 215. 

129. Statute Construed. —The act to provide compensation to the owners of 
animals killed or injured by the cars (acts 1863, p. 25), does not apply when 
the killing or injury occurs at a point at which the road cannot be legally fenced 
in. The Jeffersonville, etc., R. R. Co. vs. Brevoort, 30 Ind. 324. 

130. Same. —The fact that the company is not bound to fence at the place 
where the killing or injury occurs is purely a matter of defense, and need not be 
negotiated in the complaint. Ibid, 

131. A railroad company is not required to fence her track in the imme¬ 
diate vicinity of her engine house, machine shops, car house, and wood yard, 
and the company is therefore not liable for stock killed by her in such places. 
The Indianapolis, etc., R. R. Co. vs. Orstel, 20 Ind. 231. 

132. Same. — Cities. —The statute does not apply to injuries done at points 
where it would be illegal or improper for the railroad company to maintain 
fences, such as road and street crossings, etc. It is not every place however, 
within the corporate limits of a town or city that is within the exceptions, but 
only such as it would be improper to fence. The Indianapolis, etc., K. R. Co. 
vs. Parker, 29 Ind. 471; The Lafayette, etc., R. R. Co. vs. Shriner, 6 Ind. 
141; The Indianapolis, etc., R. R. Co. vs. Kenney, 8 Ind. 402; the same vs. 
Orstel, 20 Ind. 231; the same vs. Irish, 26 Ind. 268. 

133. Highways. —Railroad companies are required by statute to fence their 
roads; and, construing this law as a police regulation for the safety of the pub¬ 
lic, the fact that a railroad runs alongside of a public highway would seem to 
require peculiar care on the part of the company in complying with the law. 
Indianapolis R. R. Co. vs. Guard, 24 Ind 222; Id. 283; 8 Id. 217; 10 Id. 38; 
12 Id. 3. See 24 Id. 283. 

134. A railroad company may lawfully fence across a private way, main¬ 
tained by the owner of the land for his own use; and failing to do so, is liable 
for killing stock at such a crossing. This would not be so in case of a private 
way established under the statute for the use of the lands of another. The In¬ 
dianapolis, etc., R. R. Co. vs. Lowe, 29 Ind. 545 ; 18 Id.' 173. 

135. The duty of placing suitable cattle pits at the crossings of highways, 
etc., results from the requirement that a railroad shall be “securely fenced,” if 
the company would avoid liability for animals killed. And when the usual and 
ordinary cattle pit has been constructed, as near the highway as can conveniently 
be done, the company is not liable, without proof of negligence, for an injury 
happening to an animal between the highway and the pit. The Indianapolis, 
etc., R. R. Co. vs. Irish, 26 Ind. 268; 28 Id. 479. 

136. Draw Bars. —Where a railroad company has securely fenced their 


NOTES. 


339 


road, except at certain places where the owner of the land is permitted to erect 
draw bars or gates for his own convenience in crossing said road, and by reason 
of the neglect of such land owner to maintain such bars or gates, his stock 
passes upon the railroad track and is killed, the company are not liable for the 
damages sustained. The Indianapolis, etc., R. R. Co. vs. Shirner, 17 Ind. 295. 

137. The object of the statute providing compensation for animals killed or 
injured by the cars, etc., of railroad companies, is the protection of the public, 
and not simply to compensate the owners of the animals; and the fact that the 
owner of the land has for a long period, without any contract to that effect, 
maintained a sufficient fence, does not, so far as the public is concerned, relieve 
the company from the duty imposed by the statute. While the fence is so main¬ 
tained, the company is not liable to the penalty provided by law; but that pen¬ 
alty is incurred whenever the failure to maintain the fence as required may 
happen. The Jeffersonville, etc., R. R. Co. vs. Nichols, 30 Ind. 321. 

138. The want of reasonable time to repair the fence would excuse the 
company; but the allegation, in an answer by the company, that the fence was 
out of repair but a short time, is too indefinite. Ib. 

139. The liability imposed by the statute upon railroad companies for injuries 
to animals, without proof of negligence, where the roads are not fenced, is in 
the nature of a police regulation for the safety of passengers, and applies as 
well to^ companies organized under special charters as to those organized under 
the general law. The Indianapolis, etc., R. R. Co. vs. Marshall, 27 Ind. 300. 

140. The liability extends to all kinds of animals that would be kept from 
the track by an ordinary fence, without reference to the question whether they 
are large enough to throw a train off the track when run over by it. Ib. See 
29 Ind. 471. 

141. A railroad company is not liable for an animal killed on the track at a 
point where the company was not bound to fence, unless it was killed by the 
gross negligence or willful misconduct of the company’s agents. The Indiana¬ 
polis, etc., R. R. Co. vs. McClure, 26 Ind. 370. See Negligence. 

142. Where animals are killed by the trains of another corporation, running 
in its own name and in its own behalf, and under its own control, over a part of 
the track of the defendant, the owner of the road, under a contract for that 
purpose between the two corporations, the company owning the road is liable 
under the statute. The Indianapolis, etc., R. R. Co. vs. Solomon, 23 Ind. 534. 

143. The owner of a blind horse turned him out upon the common of a 
town through which a railroad ran, where he was killed by a passing train. The 
injury did not occur on any street or alley, and the track was not fenced : Held , 
that the owner was guilty of gross negligence, amounting to a willingness to 
suffer the injury complained of, and hence he cannot recover. Knight, Adm’r 
of McRachan, vs. The Toledo, etc., R. R. Co., 24 Ind. 402. 

144. The owner of an animal killed or injured by the cars of a railroad 
company may recover therefor, if the road is not fenced, though he be not an 
adjoining proprietor, and has been guilty of negligence in permitting the animal 
to stray upon the railroad. The Indianapolis, etc., R. R. Co. vs. McKinney, 24- 
Ind. 283. 

145. A railroad company is only required to make and keep up a legal fence, 

23 


340 


NOTES, 


such an one as good husbandmen generally keep. The Toledo, etc., R. R, Co. 
v. Thomas, 1 8 Ind. 215. 

146. Where by reason of the owner of the animals injured, who was a con¬ 
terminous proprietor, having failed to make the fence according to contract 
with the railroad company, they got upon the road, he cannot recover; Terre 
Haute, etc., R. R. Co. v. Smith, 16 Ind. 102. Nor his tenants as to gates or 
bars at private farm crossings; Indianapolis, etc., R. R. Co. v. Shriner, 17 
Ind. 295; Cincinnati, etc., R. R. Co. v. Wateison, 4 Ohio St. 424. Nor a 
third person trespassing upon the lands adjoining such gates or bars; Indianap¬ 
olis, etc., R. R. Co. v. Adkins, 23 Ind., 340. Nor if the injury occurred 
where the road ought not to be fenced, as at a mill yard; Indianapolis, etc., R. 
R. Co. v. Kinney, 8 Ind. 402. Or a street crossing; Lafayette, etc., R. R. Co. 
v. Shriner, 6 Ind. 141; The Bellefontaine R. R. Co. v. Suman, 29 Ind. 40. 

147. Where, by contract with a railroad company, the owners of the land 
through which the road passes has undertaken to maintain the fence, no recovery 
can be had by him against the company for injury to his animals, which resulted 
from his failure to perform the contract. The Indianapolis, etc., R. R. Co. v. 
Petty,"25 Ind. 413. 

148. The tenant of the land owner, thus bound by contract to maintain the 
fence, or a person whose animals tresspass upon the land, is in no better position 
to maintain an action than the proprietor. Ibid. The Indianapolis, etc. R. R. 
Co. v. Adkins, 23 Ind. 340; The Indianapolis, etc., R. R. Co., v. Shriner, 17 
Ind. 295. 

149. Services of Process On .—The law of 1861, (special session, p. 78), which 
required fifteen days service of process upon railroads, where the principal office 
of the company was without the State, is repealed by the act of 1863. (Acts 
1863, p. 25). The Toledo, etc., R. R. Co. Shurely, 26 Ind. 181. 

150. Same .—In actions against railroads for the killing of stock by their 
trains, the summons may, under sec. 2 of the act of 1863 (Acts 1863, p. 187) 
be served upon a conductor, but the statute does not require such service, and 
service upon an agent of the corporation, as authorized by sec. 36 of the code, 
or by the act of March 4, 1853, is good. The Jeffersonville, &c , R. R. Co. vs. 
Dunlap, 29 Ind. 426. 

151. Service .—Such against the railroad company, before a justice of the 
peace for killing stock. The summons was served ten days before the return 
day, on a conductor. On the return day the defendant specially appeared and 
brought to the knowledge of the justice, by affidavits, the fact that the principal 
office of the railroad company was not in this State, and thereupon moved to set 
aside the process and service as insufficient, and dismiss the cause. This mo¬ 
tion was overruled; and, on motion of the plaintiff, the justice continued the 
cause and fixed a time for trial twenty-eight days thereafter. Defendant made 
default at the trial, appealed to the circuit court, and renewed his motion, which 
was again overruled. Held, that this question was decided against the appel¬ 
lant in the case of the Michigan Southern, See., R. R. Co. vs. Shannon, 13 
Ind. 171, and reaffirmed in the case of the Ohio, etc., R. R. Co. vs. Quier, 16 Ind. 
440, to which rulings the court adheres. Held, also, that the continuance of the 
cause was sufficient notice to the defendant. The Toledo, etc., R. R. Co, vs. 
Talbert, 23 Ind. 438. 


FORMS. 


341 


152. Jurisdiction .—Actions against railroad companies for injuries to ani¬ 
mals, must, under the statute, be brought in the county where the injury was 
done, and in the absence of proof upon this subject, the jurisdiction of the court 
over the subject-matter of the case is not made to appear. The Indianapolis, 
etc., R. R. Co. vs. Renner, 17 Ind. 135. 

153. Two or more causes of action cannot be united in the same suit for the 
purpose of giving the circuit court or common pleas court jurisdiction, which is 
wanting when the value of the animal or animals killed, or the injury done, at 
the same time, does not exceed fifty dollars. The Jeffersonville, etc., R. R. Co. 
vs. Brevoort, 30 Ind. 324; 20 Ind. 430; 24 Ind. 139; 27 Ind. 71; 30 Ind. 342. 

154. A cow and heifer, together worth one hundred and ten dollars, standing 
at the same time, a few feet apart, upon a railroad track, were killed by a pass¬ 
ing train. The value of the heifer did not exceed fifty dollars. Held, that they 
constituted one cause of action, of which the common pleas court had jurisdic¬ 
tion. The Lafayette, etc., R. R. Co. vs. Ehman, 30 Ind. 83. 

155. A complaint for stock killed by a railroad, before the act of 1859, must 
show that the animals sued for were killed through the railroad company and 
without the immediate fault of the plaintiff. Wright vs. The Indianapolis, etc., 
R. R. Co., 18 Ind. 168; 19 Ind. 42. 

156. In an action, before a justice, to recover the value of cattle killed by a 
railroad company, the complaint should aver that they were in the county, and 
before the plaintiff can recover, his proof must establish the fact. The Indi¬ 
anapolis, etc., R. R. Co. vs. Wilsey, 20 Ind. 239. 

157. In a complaint to recover of a railroad company the value of animals 
killed by its cars, it is not sufficient to aver, generally, that the road was not 
securely fenced in, etc., without connecting the want of such fence. 

- » 

PROMISSORY NOTES. 

No. 1. 

May —, 187-. 

One day after date, for value received, I promise to pay 
John Smith five hundred dollars, waiving valuation and ap¬ 
praisement laws, with interest at ten per cent, from date. 

JOHN HOE. 

No. 2. 

One year after date, for value received, I promise to pay 
John Smith fifty dollars, waiving valuation and appraise¬ 
ment laws, with interest at ten per cent., after maturity. 

JOHN HOE. 

No. 3. 

Six months after date for value received, I promise to pay 
James Short fifty dollars, waiving valuation and appraise¬ 
ment laws with interest from date. J OHN SMITH. 



342 


FORMS. 


No. 4. 

June-, 1873 . 

Due James Smith fifty dollars, waiving valuation and 
appraisment laws. RICHARD ROE. 

No. 5. 

$- June 30 , 1873 . 

One day after date, we promise to pay John Hunt one 
hundred dollars value received, waiving valuation and ap¬ 
praisement laws N If this note is not paid at maturity, the 
undersigned agree to pay expenses of collection including 
attorneys fees. SMITH HAYS. 

JOHN" SHORT. 

No. 6. 

June 10 , 1873 . 

One day after date, for value received, I promise to pay 
John Smith, at the first national bank of Newport, five 
hundred cents, value received, waiving valuation and ap¬ 
praisement laws, interest at ten per cent. 

SAM NASBY. 

BILL OF EXCHANGE OR ORDERS. 

No. I. 

Newport, Ind., June 1 , 1873 . 

Two months after sight pay James Smith five dollars. 

To Joe Rigler. SAM POLL. 

No. 2. 

June 30 , 1873 . 

Mr. Thomas Loveg^od please pay Seth Thomas five dol¬ 
lars, and charge the same to me. 

HUGH LONGSTREET. 

ORDER FOR GOODS. 

January 27 , 1872 . 

Mr. Thomas Guliver:—Please let Henry Short have 
such goods as he may select from your store, not to exceed 
five dollars worth, and charge the same to my account. 

JOHN W. BOLINBROKE. 

RECEIPT. 

[No. I.] 

Received, Newport, Indiana, June 2, 1873 , of Smith 
Hamilton, Five Hundred Dollars in full of all accounts to 
this date. HUGH COOK. 


FORMS. 


343 


[No. 2.] 

Received, January, 2 , 1873 , of Jo. Bigler, administrator 
of the estate of John Pogram, deceased, Five Dollars, in 
full of my account against said estate. 

JAMES PEHYBECKER. 

FORM FOR MINUTES FOR A MEETING OF THE CITIZENS FOR 
SOME PUBLIC PURPOSE. 

School House Ho. 8, Vermillion Township, 
Vermillion county, Ind., July 2, 1873 . 

The citizens of school district Ho. 8 met at the above 
mentioned time and place for the purpose of organizing a 
debating society. On motion Henry Shoe was called to 
the chair, and Seth Smith was chosen Secretary. On mo¬ 
tion, a committee of three was appointed by the chair to 
draft a constitution and by-laws for the government of 
this club; the committee consisted of A, B and C. On mo¬ 
tion a committee was instructed to report at next meeting. 
There being no further business, on motion, the meeting 
adjourned to meet on Saturday night, July 10 , 1873 . 

IIEHRY SHOE, Pres’t. 

Seth Smith, Secretary. 

AN AGREEMENT. 

This article of agreement made and entered into on this 
4th day of June, 1873 , between John Smith and Henry Long. 
The said John Smith doth hereby covenant and agree 
with the said Henry Long as follows. He, the said John 
Smith, does hereby agree to let the said Henry Long have 
the use of his farm, situated in Vermillion county Indiana, 
described as follows: South-west quarter of section 19 , 
township 17 north, range 10 west, 160 acres, for the term 
of one year from this date. The said Henry Long is to 
deliver to him one-half of all the crops raised on said 
farm; the wheat to be delivered in the stack, and the corn 
in the crib, on said farm. 

Henry Long covenants aud agrees with the said John 
Smith to take said farm, and to pay the rent above speci¬ 
fied, and to farm the land in a good, husband-like manner; 
that he will do no unnecessary damage to the house or or- 


344 


FORMS. 


chard on said land, and that he will at the end of one year 
from this date surrender up to the said John Smith the 
farm aforesaid. 

JOHN SMITH. 
HENRY LONG. 

CHATTLE MORTGAGE. 

In consideration of one hundred dollars to me in hand 
paid by Fred. Ray, I have this day bargained and sold 
unto the said Fred. Ray the following goods and chattels: 
One bay mare, five years old; one black milch cow, with 
white face, three years old. Provided always, and these 
presents are upon this condition: that whereas, I am in¬ 
debted to the said Fred Ray in the sum of one hundred 
dollars, evidenced by a promissory note bearing even date 
herewith, the same being payable December 25 th, 1873 , of 
which the following is a true copy: (Here give full copy 
of note.) Now, if I shall pay said note when the same 
shall become due, then this sale and conveyance to be void, 
otherwise to be in full force. Then I am to retain posses¬ 
sion of said property until said debt becomes due, and upon 
default of payment of said money, I am to redeliver said 
property to the said Fred. Ray, June 10 , 1873 . 

THOMAS NASBY 

STATE OF INDIANA, \ 

County of Vermillion. J ss * 

Personally came before me, J. A., Justice of the Peace in 
and for said county, Thomas Nasby, and acknowledged the 
execution of the above mortgage, in witness whereof I have 
hereunto set my hand and seal, this June 10 , 1873 . 

J. A. Justice of the Peace. 

This mortgage must be recorded in ten days or it is void. 
1 Res. G. & H. p. 352 . 

WARRANTY DEED. 

[No. I.] 

A. B. conveys and warrants to John Jones the following 
land situated in Vermillion county, Indiana, to-wit: The 


FORMS. 


345 


northeast quarter of section ten, township sixteen north, 
range 9 west, one hundred and sixty acres, for the sum of 
ten thousand dollars. 

In witness whereof the said A. B. has hereunto set his 
hand and seal, this 10 th day of May, A. D., 1873 . 

A. B. [Seal.] 

STATE OF INDIAN 

Vermillion County, j ss * 

Before me, R. E. S., Recorder in and for said county and 
State aforesaid, personally comes A. B. and acknowledged 
the execution of the above deed. In witness whereof I 
have hereunto set my hand and affixed my official seal, this 
10 th day of May, 1873 . 

[Seal.] R. E. S., Recorder. 

If a deed is by a husband and his wife, say A. B. and C.B., 
his wife, convey, etc. 

All deeds should be recorded in ninety days from the 
time of execution. 

QUIT CLAIM DEED. 

[No. 2.] 

A. B., and C. B., his wife, quit-claims to John Smith the 
following lands, situated in Vermillion county, Indiana, to- 
wit: The south-east quarter of the south-west quarter, 
section 8, township 17 north, range 10 west, 40 acres, for 
the sum of seven hundred dollars. 

In testimony whereof the said A. B. and C. B., his wife, 
have hereunto set their hands and seals, this April 9 , 1873 . 

A. B. [seal.] 

C. B. [seal.] 

This must be acknowledged, like No. 1 . 

MORTGAGE OF LAND. 

A. B. and C. B., his wife, mortgage and warrant to John 
Smith the following described premises, situated in Vermill¬ 
ion county, Indiana, to-wit: The south-east quarter of the 
south-west quarter, section 8, township 17 north, range 10 
west, forty acres, to secure the payment of [here give a 
copy of note or account, &c.] 


346 


FORMS. 


In testimony whereof the said A. B. and C. D. have here¬ 
unto set their hands and seals, this 9 th day of April, 1873 . 

A. B. [seal.] 

C. D. [seal.] 

All mortgages must be acknowledged before some person 
authorized by law to take the acknowledgment of the same. 


INDEX 


A. 


Abatement plea of.. 27 

Abatement plea of.. 183 

They must be filed with the other 
pleadings. 26 


ARGUMENT. 

The party having the burthen of 

the issue must open and close.32, 33 

But he must disclose in opening all 
the points relied on in the cause; 
and if, in closing, he refers to 
new points not mentioned in his 
opening argument, the defendant 

may reply thereto. 32 

The court may limit the argument 
both as to time and number of 
attorneys. 34 

AMENDMENT. 

A liberal rule should be adopted 

by the board. 45 

Note latitude allowed by the code.. 45 
Matter of description and legal ef¬ 
fect may be amended, &c. 45 

Board may require pleading made 

more certain by amendment. 45 

No variance between the allega¬ 
tion and proof to be deemed 
material, but may be cured by 

amendment.45, 46 

Any pleading may be amended at 
any time before the pleading is 

answered. 46 

All pleading made after answer is 
filed must be by leave of court.. 46 
If amendment causes delay it must 
be at the costs of the party 

amending. 46 

When one is ignorant of his oppo¬ 


nent’s name he may be designa¬ 
ted in the pleading by any name, 
and when his true name is dis¬ 
covered, may be inserted by 

amendment. 46 

Writs and other processes amended 47 

ANIMALS. 

What allowed to run at large on 
public common.140, 141 

AMBIGUITIES. 

Latent and patent. 66 

Account against the county al¬ 
lowed by the Board must be a 
detailed statement filed by the 

claimant. 103 

Allowance to county officers. 138 

To assessors and deputies. 138 

To widow women and old people 
and children who attend trial in 

State prosecutions. 146 

Auditor and treasurer to report to 
commissioners at June session of 
each year relative to school 

fund.no, hi 

What report must contain.in, 112 

The board must examine the report, in 

APPEALS FROM DECISION OF THE BOARD. 

All decisions except legislative may 

be appealed from.307, 308, 309 

Thirty days’ time allowed for ap¬ 
peal. 307 

What cases may be appealed from.. 309 
Appeal by one not a party to the 

suit.310, 311 

Affidavit in such cases. 311 

Bond should show what order you 
appeal from.. 311 





























348 


INDEX. 


Bond, form of. 311 

Who to make defendant in a case 

of appeals. 312 

Auditor’s certificate to transcript... 312 


B. 

BOARD OF COMMISSIONERS. 


The word commissioner is from 

commissio. I 

Three elect from each county, one 

for each district. I 

Elect by qualified voters of the 

county. I 

Take their office every year.. 2 

Always composed of practical men.. 2 
Who eligible to the office of com¬ 
missioner. 2 

The candidate must have resided 

in the county one year, &c. 2 

What constitute residence... 1, 2,3, 4 

Allowed five dollars per day. 138 

Clerk, sheriff, coroner and recorder. 141 


BONDS ISSUED BY COUNTY. 


Bonds, form of.. 104 

Auditor must deliver the bonds to 
the treasurer, and charge him 

with the same. 105 

If the county treasurer fails to sell 
the bonds delivered to him he 
must return them to the county 


auditor, who must credit him 


with the same. 105 

When bonds are returned by the 
auditor to the treasurer, they must 

be destroyed by the board. 105 

The board must conform to the law 
or they are void. 106 


Bonds approved of. 

The board must approve the bond 
of the county auditor and county 
treasurer after the execution has 
been acknowledged. 107 

BOARD OF EQUALIZATION. 

To consist of commissioners, aud¬ 
itor and assessor. 138 

BRIDGES. 

Bridges across streams forming bound¬ 
aries between two counties—how built. 

To be built at the expense of both 


counties; boards of commission¬ 
ers each county must hold a joint 
meeting, a survey and estimate 

to be first made. 108 

The joint session of the boards to 
appoint one or more superintend¬ 
ents to control the work, &c. 109 

They must at such joint session 
make necessary appropriation to 
build said bridge, to be equally 
divided betweeneach county ac¬ 


cording to the wealth. 109 

Record to be kept of such joint 
session. 109 


Bridges across rivers running in one 
county—how erected. 

The board must cause a survey and 
estimate to be made, &c., and 

bridge erected.126, 127 

Bridge company having abandoned 
its bridge the board may take 
possession and control it. 134 

C 

CONTINUANCE. 

For good cause shown board must 

continue cause. 31 

Board may postpone any trial on 
their own motion, for sickness, 

&c. 48 

Parties may by agreement postpone 

trial. 48 

Court may, for good cause shown, 

&c. 48 

Continuance may be had at any 

stage of the proceeding, &c. 49 

At the sound discretion the court.. 49 
What fact an affidavit for continu¬ 
ance must contain. 50 

Affidavit for continuance.50, 51 

Continuance for amendment only 
on affidavit for good cause shown 51 
Affidavit for continuance cannot be 

amended. 52 

Contested election case can be con¬ 
tinued only twenty days. 52 

Costs of continuance.52, 53 

Commission to take depositions..79, 81 

CORPORATION. 

The board of commissioners is a 


corporation. 100 

assess all the duties,-rights and 
powers incident to a corporation, 
may sue and be sued, &c. 100 






































INDEX. 


349 


CANAL. 

When the company fails to build 
bridge according to law, board 
of commissioners must bring suit 
against the company. 141 

CONTEMPT. 

The board can inflict a fine not to 
exceed three dollars, and impris¬ 
onment twenty-four hours for 
contempt. 101 

Form of record in case of contempt 101 

CORONER. 

Allowance per day, &c. 138 

COURT HOUSE. 

Public Building, how erected and re¬ 
paired , < 5 rV. 


If the revenue of the county is not 
sufficient to build the necessary 
court house or jail, or other pub¬ 
lic building in the county, they 
may borrow money and issue 

bonds for such purpose. 104 

The bonds not to be of a less de¬ 
nomination than 25 dollars. 104 

The bonds not to bear greater rate 

of interest than ten per cent. 104 

The bonds must not exceed rate of 
interest in the State where they 
are to be sold. 104 


No bonds can be issued or money 
borrowed by the board so long 
as a loan made after March 4, 
1869, is outstanding and unpaid. 104 
Before they can contract for the 
building of any courthouse, jail, 
fence, bridge or monument, with¬ 
out having specification and plan 
adopted and deposited with the 


auditor. 106 

But when the costs of fence or 
bridge to be built does not ex¬ 
ceed five hundred dollars, no 

specification need be filed. 106 

The building must be let to the 


lowest responsible bidder; if 
party can give bond as required 
by law, he is to be considered 
responsible..... 107 

CEMETERY. 

Board of commissioners may con¬ 


vey any cemetery to an incorpo¬ 
rated town.122, 123 

County Seat, Removal of. 

When fifty-five per cent, of the 
legal voters shall petition, as for 
a re-location of the county seat, 

&c., the board must make an 
order to that effect. 125 

New Counties , how formed. 

Whenever a majority of the legal 
voters of any territory shall peti¬ 
tion the boards of county com-* 

missioners to be effected, &c. 282 

County shall not be less than two 
hundred miles square. 283 

Form of Petition 

The petition must designate the 
name and give the boundaries of 

the proposed county. 282 

It must be verified by the oath or 

oaths of competent witnesses. 282 

A committee to be appointed by 
each of the boards, to consist of 
three, to lay off and establish the 
boundaries of said county, &c... 282 
In presenting your petition, you 
must prove the allegations in 

your petition are true. 284 

The proof may be by affidavit or 

otherwise. 284 

Commissioners appointed must be 
notified of their appointment 284,285 
No definite time for the commis¬ 
sioners to meet.285, 286 

The report of commissioners...285, 286 
Record to be made, &c., by board. 286 
County boundary may be changed 

by the board.286, 287 

County seats, re-location of.306, 307 

D. 

DEEDS. 


Warranty, form of.. 344 

Quit claim, form of. 345 


DEMURRERS 

Six causes of demurrer. 

I. The court has no jurisdiction 
of the person of the defendant ••• I? 



























350 


INDEX. 


2. That the plaintiff has no legal 

capacity to sue... 

3. Another action pending for 

same cause, &c. 

4. Defect of parties, plaintiff or 

defendant. 

5. That the complaint does not 

state facts sufficient to constitute 
a cause of action... 

6. That several causes of action 

have been improperly united. 

The objection must appear on the 
face of the pleading, in order to 

be reached by demurrer. 

The demurrer may be for one or 

more statutory causes. 

It need not be in exact language 
of the statute, but must include 
in terms or substance some one 

of the statutory causes.16, 

Remarks on sub-division—first, of 
of section 50, that the court has 
no jurisdiction of the person of 
the defendant: Jurisdiction un¬ 
der this division means the au¬ 
thority by which a j udicial officer 
takes cognizance of and decides 

a cause . 

Demurrer for 2d statutory cause— 
that plaintiff has no legal capa¬ 
city to sue, means not entitled to 

sue. 

Demurrer for 3d statutory cause— 
that there is another action pend¬ 
ing between the same parties for 
the same cause. It must be pend¬ 
ing'in some court in this State.. 18 
Demurrer for 4th statutory cause— 
that there is a defect of parties, 
plaintiff or defendant. Unless 
all persons having an interest,&c., 
are joined, the complaint will 
be subject to demurrer under this 

division. 

Demurrer for 5th statutory cause— 
that the complaint does not state 
facts sufficient to constitute a 
cause of action—cause in this 

division means matter.. 

A demurrer to a whole complaint 
containing one good paragraph, 

should be overruled. 

Cannot demur to a part of a para¬ 
graph. 

Story’s remarks on pleading. 

Demurrer for 6th statutory cause— 
that several causes of action have 

been improperly united, &c. 

Sufficiency of pleading on demur¬ 
rer, how arrived at. 


Form of demurrer..*. 28 

Demurrer to answer and reply..29, 30 

DEPOSITION. 

Notice to take must be given. 68 

Where there is one or more parties, 
notice to one of the real parties 
in interest will be notice to all... 75 

Time of taking.68, 74 

What notice should contain..68, 73, 74 
Cannot be taken before any officer 

of kin to either party.68, 73 

Notice served as summons for wit¬ 
nesses .68, 75 

Time of service of notice ..75, 76, 77 

Notice on non-resident parties by 
publication in paper for 3 weeks, 
or by filing notice in the clerk’s 

office. 68, 69 

Courc may order the taking of depo¬ 
sitions in certain cases. 69 

Witnesses can be compelled to tes¬ 
tify and sign their deposition. 69 

Witnesses cannot be compelled to 
attend for examination upon a 
deposition in any other county 
than that of his residence, but 


may consent to do so. 69 

No deposition can be read in evi¬ 
dence when the party is in court, 
unless the same has been taken 

by order of court. 69 

Deponent must be sworn. 70 

Certificate of the officer... 70 

No commission money when depo¬ 
sition taken in this State. 7 ° 

Commission must issue when the 
deposition is to be taken out of 

the State. 70 

When the name of the officer is in¬ 
serted in the commission, his cer¬ 
tificate sufficient. 71 

If the officer is not named, the cer¬ 
tificate of the clerk must be at¬ 
tached . 71 

Depositions taken in foreign coun¬ 
try, taken pursuant to order of 

Court. 71 

Must be filed one day before trial, 
if intended to be read in evidence, 71 
May be published by clerk in vaca¬ 
tion by notice, &c... 71 

Published by order of court. 71 

Objection to question may be made 
at the time of taking deposition... 71 


But objections may be made in 
court, whether made on the tak¬ 
ing or not. 71 

Objection to the Validity of a depo- 


15 

15 

15 

15 

15 

15 

16 

17 

17 

18 

19 

19 

20 

22 

23 

23 

24 

28 









































INDEX. 


351 


sition must be made before enter¬ 
ing on the trial.. 71 

But any deposition may be suppres¬ 
sed after commencement, if any 
matter which is not disclosed ap¬ 
pears during the trial. 71 

Depositions kept on file may be 
used in evidence on a different 

trial. 71 

Conditional examination of a wit¬ 
ness by order of court on affida- 

vit........72, 73 

rormof notice.74, 75 

Deposition of aged person, who is 
unable to attend court, may be 
taken at any time and read in evi¬ 
dence... 78 

When a deposition has been taken 
by order of court, it may be read, 
no matter where the witness re¬ 
sides, if the deponent if aged, 

sick or infirm. 78 

But when a deposition has been 
taken for a special reason, be¬ 
fore it can be read, it must be 
shown that the reason still ex¬ 
ists ...78, 79 

Form of commissions.79, 80, 81 

Depositions of witnesses living out 
of the State must be taken by 

order of court. 81 

Court to designate in the order time 

of notice. 81 

How to get an order to take a depo¬ 
sition of a foreigner.81, 82 

Motions to suppress depositions. 

If it has not been taken according 
to regulation of the statute, or 
contrary to the rules governing 
the production, a motion may be 
made to suppress the whole or 

any part of it. 85 

If time was not sufficient, should 
be suppressed, or if certificate of 
the officer is not according to the 
statute, or if the officer before 
whom the deposition was taken 
was a kin to either party, or if 
the officer before whom the depo¬ 
sition was taken was not author¬ 
ized to administer oaths, or if the 
witness was not competent to tes¬ 
tify, the deposition should be sup¬ 
pressed, so if the deponent is not 

competent to testify. 85 

Motion to suppress must, as a gen¬ 
eral rule, be made before trial... 86 
But when matter appears on the 


trial not disclosed in deposition, 
motion to suppress may be made 
as soon as the defect is discov¬ 
ered.*.. 85 

Oral motion can be made to sup¬ 
press, but the better way is to put 

your motion in writing. 85 

Form of motion to suppress. 87 


DIVISION OF TOWNSHIP. 

Board must divide township into 
road districts in case trustee fails 
to do so. 147 

E. 

ELECTION, HOW CONTESTED 


The board of commissioners have 

jurisdiction.5, 139 

In district in county giving largest 

vote for the office must try. 5 

Township and county office brought 

in proper county. 6 

Causes for contest—mal-conduct of 
office, ineligibility of contestee, 
contestee ineligible on account 

of crime, illegal votes, &c. 6 

But no illegality or mal-conduct 
shall cause contestor to be de¬ 
clared elected, &c. 6 

Complaint or written statement, 

form of.... 7 

Complaint must be sworn to. 8 

Complaint in case of mal-conduct 9 

Notice to clerk of circuit court. 10 

Form of Auditor’s summons to con¬ 
vene the board in special session 
to try contested election cases... 11 

Summons to contestee. 12 

Sheriff’s service and return to sub¬ 
poena. 12 

Subpoena for witness. 12 

Meeting of the board to try con¬ 
tested election cases. 13 

Where defendant fails, must be 

called and defaulted. 13 

Defendant’s appearance, &c. 13 

General and special appearance.... 13 
Special appearance does not cause 

defect. 14 

Motion to set defective service aside 14 

Must be ruled to answer, &c. 14 

The defendant must answer at the 

time appointed. 14 

After an order to answer, if the 
defendant fails to answer, must 
render judgment against him as 
by default... 14 







































352 


index. 


EVIDENCE. 


F. 


Plaintiff must be permitted to intro¬ 
duce his first... 32 

After the plaintiff has introduced 
his, the defendant will then be 
permitted to introduce his evi¬ 
dence. 32 


If the defendant introduces new 
evidence not responsive to evi¬ 
dence introduced by the plain¬ 
tiff, the plaintiff may introduce 
evidence rebutting to the evi¬ 
dence introduced by the defend¬ 
ant. 32 

He who affirms a thing to be so 

must prove it. 32 

The evidence must conform to the 

issue..61, 62 

Burthen of proof of proposition or 
issue lies on the party holding 

the affirmative.62, 63 

Best evidence must be produced.. 63 64 

Hear-say evidence.64, 65 

Admission against a party always 

admissible as evidence.65, 66 

Parol evidence should never be re¬ 
ceived to vary the terms of a 

written agreement. 65 

Ambiguities latent and patent. 66 

What the court will take notice of 

without proof.. 67 

They will take notice without proof 
of nation, laws, seal of notary 
public, course of heavenly bod¬ 
ies, seed time and harvest, &c., 

&c. 67 

Documentary and written evidence, 
records and judicial opinions, 
private writing, &c., admitted as 
evidence..87, 88, 89, 90^9 1, 92, 

„ . 93 , 94 ,95,96, 97 

Motion to compel opposite party to 
produce document at the triah.96, 97 
Estople, see highway.174, 175 

EXPENDITURES AND RECEIPTS. 

Expenditures and receipts of the 
preceding year must be published 
by the board each year..... 108 

EXCUSE. 

The board may render and excuse 
for the delinquency of the coun¬ 
ty treasurer in paying over money 
to the State treasurer. 139 


FORMS. 


7 

7 

12 


26 

27 

27 

28 

3i 

34 

50 

75 

82 

84 

95 

99 

104 

119 

Abatement plea of, in road cases... 183 
Form of petition for highways run¬ 
ning in but one county. 188 

Form for affidavit for proof of post¬ 
ing notice. 188 

Affidavit of publisher, &c. 188 

Record, form of road cases.... 189, 190 
Form of report of viewers of high¬ 
way. 193 

Form of record for the board in 
case of confirmation of the re¬ 
port of viewers of highways. 194 

Form of objection to a highway be¬ 
cause it is not of public utility... 195 

Petition for damages, form of.. 197 

Notice to viewers when a party 

claims damages. 197 

Notice must be given by the claim¬ 
ant.197, 198 

Form for report of viewers for 

damages.199, 200 

Form for petition to have a road 

entered for record. 206 

Form of petition for roads running 
in more than one county.. 214 


For complaint in-contested election 

cases. 

Complaint for malconduct, &c. 

Notice to the clerk and to the con- 

testee.7 and 

Form of auditor’s summon to con¬ 
vene the board in contested elec¬ 
tion cases. 

Form of defendants’ answer. 

Plea in abatement, form of.. 

Plea by way of confession and ac¬ 
cordance, form of. 

Form of demurrer. 

Oath of witness, form of. 

Form of record in contested elec¬ 
tion cases. 

Form for affidavit for continuance.. 
Form of notice to take deposi¬ 
tions.74, 

Form for affidavit for continuance 
to take depositions in foreign 

country. 

Form of notice to open deposition 

in vacation. 

Form of auditors’, clerks’ and 


judges’ certificates.94, 

Form of officers’ call for special 

session.98, 

Forms of county bonds. 


Form for petition to have highway 
on county line worked. 













































INDEX. 


353 


Form for notice. 

What you must prove in order to 

sustain your petition. 

Form of remonstrance for damages.. 
Form of remonstrance under sec¬ 
tion ii. 

Form of report of vie\vers..22l, 222, 

Auditor’s notice.223, 

Form of petition for vacation. 

Form of petition in case of appro¬ 
priation by a county to aid rail¬ 
roads, &c. 

Form of record for board in rail¬ 
road cases.259, 

Form of notice in case of railroad 

appropriation. 

Form in case of township appro¬ 
priation . 

Form of petition in formation of 

new county. 

Form of affidavit, &c. 

Form of a petition to obtain a per¬ 
mit to sell intoxicating liq¬ 
uors.290, 291, 

Form of liquor seller’s bond. 

Form of auditor’s certificate. 

Form of petition for vacating 

streets and alleys. 

Form of notice. 

Form of owner’s consent. 

Form of petition for private road.. 
Form of notice in case of private 

road.302, 

Form of agreement. 

FUEL. 

The board must furnish the county 
offices with fuel, &c. 

FERRIES. 

The board may, on application of 
any person, establish a ferry across 

any river in their county. 

The applicant must give notice of 
the time and place the applica¬ 
tion will be made. 

How established on rivers forming 
boundary between two coun¬ 
ties.127, 

The board must, when the ferry is 
to be established across a river 
where the owner of land will not 
apply for license, and an applica¬ 
tion is made by another to estab¬ 
lish a ferry on land not his own, 
appoint viewers to assess the 
damages the land owner may 
sustain. 


The board shall describe the number 
and description of the boats.. 128, 129 

Board to fix rate of ferriage. 129 

Appeal allowed from the decision 
of the board in the establishment 
of ferries. 130 


G. 

GRAND JURY. 

To be drawn by the clerk of the 
court in the presence of the board 
at their first session of each year.. 121 
But if they fail to select the grand 
jury at their first session in the 
year they must make the selec¬ 
tion at the next or any succeeding 

session. 122 

Grand jury to inspect county jail... 145 

H. 

HIGHWAYS. 

On county lines—how worked. 

If twelve freeholders shall sign and 
present to the board of commis¬ 
sioners of their county a petition 
setting forth that a road in their 
district (describing) has not been 
worked for some time owing to 
the fact that it is situated on the 
county line, &c., they must ap¬ 
point two freeholders of the 
county as commissioners; the 
auditor must notify the board of 
commissioners of the other coun¬ 
ty of the appointment of the com¬ 
missioned!, &c.; the commission¬ 
ers must report to the board of 
each county, who must enter the 
same on their record, and the 
boards must notify the trustees of 
their township where the road is 
located of their action, and the 
parts of the road each must 

work, &c.117, 118, 119 

Form of petition to have highway 


on county line worked.. 119 

Presentation of the petition to the 
board, what must be proved. 120 


Highways—how established. 

Highways in England, signification 
of the word used in the United 
States in a general sense means 
footways, roads, ferries, bridges, 

&c. 163 


215 

216 

220 

221 

223 

224 

225 

256 

260 

261 

263 

283 

283 

296 

293 

297 

298 

299 

300 

301 

30 3 

343 

123 

127 

127 

128 

128 


































354 


INDEX, 


Highways were established in early 

times. 

The principle on which the right 
of the public rests to take one’s 

land for highway.163, 

When men enter into society they 
give up a part of the natural right 
for the benefit of the communi¬ 
ty, &c. 

Government organized to regulate 
the conduct of men in society, 
and must exercise a kind of su¬ 
pervisory power over person and 
property to accomplish its object 
Right of each citizen to be upheld 
Right of the public paramount to 
the rights of the individual.. 164- 
Right to take private property for 
public use is often given to subor¬ 
dinate officers. 

Highways may be established in 
this State in three ways: first by 
express grant, second by dedica¬ 
tion, and third by order of the 

board of commissioners. 

Highway, how proved. 

The right of the public maybe lim¬ 
ited to the use of the way. 

Four or five years use by the pub¬ 
lic sufficient to raise the presump¬ 
tion of dedication.167, 

Twenty years use an absolute bar, 
but the public may insist upon 

common law rule. 

A cul de sac may be a high¬ 
way.170,171, 172, 

No county road to be less than 30 
feet wide, but a road established 
by dedication may be any width 
Dedication of a road by the public 
is based upon the ground of es- 

tople.174, 

Act with reference to roads run¬ 
ning in one *county. 

General provisions concerning high¬ 
ways. 

The statute relating to highways 

very ambiguous. 

Our Supreme Court has attempted 

to establish a practice, &c. 

Commissioners to transact business 
as circuit court not applicable to 

practice in highway cases. 

Demurrer not allowed in such cases, 
if the petition fails to set out the 
names of the land owners, a mo¬ 
tion to dismiss the proceeding for 
that reason will be entertained at 
any stage of the proceeding, a 
defect which is not apparent on 


the face of the proceeding must 


be taken advantage of at the time 

you present your petition. 182 

Advantage may be taken of all de¬ 
fect apparent on the face of the 
petition by oral motion or by 

written motion. 183 

First thing to be done is to get up 

the petition. 1 83 

Great care should be taken in draw¬ 
ing the petition, &c. 184 

The names of land owners over 
which the road passes must be 

set out. 184 

Qualification of petitioners must be 
something more than freeholders 184 
Petitioners should be intelligent 
adult persons, not under legal 

disability . 185 

Form of petition in cases where 
roads run through but one county 186 
What you must prove on present¬ 
ing your petition. 189 

Viewers, their qualifications, &c., 
must not own land in neighbor¬ 
hood of the road, nor of kin to 

either party. 189 

When viewers report damages, the 
board, if satisfied that the same 


is unreasonable, may set report 
aside and appoint new viewers.. 200 
This can only be done once....200, 201 
What the board should take into 
consideration in ascertaining the 


utility of the road. 201 

Highways which have been used 
for twenty years maybe recorded 

by the board on proof. 205 

Form for a petition to have high¬ 
way entered of record. 206 


On presenting your petition prove 
that the road has been in use for 
twenty years, a slight deviation 
from the track will not vitiate or 

abolish the road. 206 

Vacation and change of highways 

on a person’s own land, &c. 206 

Form of petition, &c. 207 

The new road must be made by the 
petition as good as the old one.. 208 
Petition for location and change, 

&c.208, 209 

Notice, &c. 209 

Highways running in more than 
one county, statute governing 

such cases.209, 210 

Twenty-four freeholders must peti¬ 
tion for. 209 

Names of the land owners must be 
given. 210 


163 

164 

164 

163 

163 

•166 

166 

166 

166 

167 

168 

168 

173 

174 

175 

175 

178 

180 

180 

181 






































INDEX. 


355 


Twenty days’ notice to be given... 210 
Commissioners to be appointed by 

the boards. 210 

Auditor of the county in which the 
petition is filed must notify the 
auditors of the other counties... 210 
Each board to appoint a commis¬ 
sioner to meet at time and place 
to be designated. 210 

Highways running in more than one 
County . 

Report of commissioners must be 
filed with each bounty board.. 211,218 
If no remonstrance is filed, board 
must, if the report recommend 
location, declare prayer of peti¬ 
tion granted. 211 

Must order the auditor of such 
county to notify the auditor of 

all the counties, &c. 211 

If the commissioners report unfa¬ 
vorable the petition must be dis¬ 
missed.211, 218 

Remonstrance for damages.211, 212 

Remonstrance must be sworn to... 212 
Viewers appointed to assess dam¬ 
ages. 212 

Viewers must take an oath, &C..212,218 
If viewers report in favor of dam¬ 
ages, the court must consider 
whether the damages are greater 
than the utility of the highway.. 

[212, 218, 219, 220 
Remonstrance filed by more peti¬ 
tioners than signed the petition, 
the petition must be dismissed... 

[212, 213, 219 

Petition for highway, what it must 

contain.113, 214 

Form of..214, 215 

Notice, form of. 215 

Twenty days’ notice to be given... 215 

Notice, how given. 215 

How to present your petition. 216 

Notice, how proved. 216 

Viewers, how appointed—must be 
from each county, to be notified 
by the auditors of each county.. 

[217, 218 

Time and place for commissioners 

to meet.217, 218 

Form of remonstrance for damages 

[220, 221 
I. 

intoxicating liquor. 

License to sell, how obtained.. 287 

24 


Acts 1873.2S7, 288, 289, 29c 

Form of petition for license in an 

incorporated town. 290 

Ambiguity of the section. 290 

Form of petition in a ward of an 

incorporated city. 291 

Form of petition in an incorporated 

town or township. 291 

The petition must be signed by the 
applicant and a majority of the 
legal voters of the ward, town hr 
township, in which the applicant 

wishes to sell. 292 

Bond must be in the sum of three 

thousand dollars—form of.. 293 

Bond must be acknowledged. 294 

Bond must be recorded by the 

auditor. 294 

The commissioners must approve 

the bond.294, 295 

Any one may resist the granting 

the permit. 295 

Record of the board, &c. 296 

Certificate of the auditor to appli¬ 
cant . 297 

If amount of bond becomes ex¬ 
hausted, the applicant must file 
new bond in ten days, or he for¬ 
feits his license.297, 298 

ISSUE. 

The issue, what it is. 32 

Impeachment of witnesses.59, 60 

INSPECTOR. 

Inspector of salt, beef, pork, flour, 
tobacco—-how to be inspected... 146 

J. 

JURISDICTION. 

The board possesses corporate pow¬ 
ers. 100 

The board has no common author¬ 
ity, and possess no authority or 
power, except what is given 

them by law. 100 

The acts of the Legislature is their 

constitution. 100 

They have authority and power to 
make such rules for the transac¬ 
tion of business as they may deem 

right and proper. 100 

Each member is authorized to ad¬ 
minister all oaths necessary to the 

discharge of their duties. iol 

They can fine for contempt, &c.... ioi 








































356 


INDEX. 


The board is an inferior court of 

limited statutory powers.... 102 

If the board exceeds its authority, 

its acts are void....'. 102 

In case of discretionary power, 

valid. 102 

Their record must show that they 

had jurisdiction. 102 

They have jurisdiction to make or¬ 
ders respecting the property of 
the county and to control the 

same. 103 

To sell the public grounds and 
buildings, and to purchase others 

in lieu thereof. 103 

May enlarge public square, &c. 103 

To allow all accounts against the 
county... 103 


JUSTICE OF THE PEACE. 
Number to be regulated by board.. 122 
JURYMAN. 

Fees per day... 138 

L. 

LIBRARY. 


The board may establish and main¬ 
tain a public library... 130 

For this purpose may donate mode 
to procure the location of the 

county seat... 131 

They may appropriate a sum each 
year not to exceed seventy-five 
dollars for the purchase of books 


and maps for the library. At 
their June session of each year 
the librarian to report the condi¬ 
tion of such library, books added 
or lost, and a general history of 
the same.130, 131, 132 

M. 

MACADAMIZED, GRAVEL AND PLANK 
ROADS. 

Any number of persons owning 
three-fifths of the real estate as 
shown by the books of the Audi¬ 
tor may petition for the right of 


way.303, 304 

Form of petition.304, 305 


Road must be five miles in length, 304 
Board to grant the applicant right 


of way.. 304 

How to proceed before the board.. 305 
Married woman not a competent 
petitioner in road cases, without 
the consent of her husband.. 184, 185 

MORTGAGE. 

Form of, for real property. 346 

Form of, for personal property. 344 

MOTIONS. 

To strike out pleading. 24 

When complaint contains some 
good and some bad allegations, 
move to strike the irrelevant 

matter out. 24 

All surplusage, tautology and irrel¬ 
evant matter must be set aside, 
when pointed out by the party 

aggrieved. 25 

Where matter can be shown under 
the general issue, which is plead¬ 
ed, is set up in separate para¬ 
graphs, it should be stricken out 

on motion.... 25 

The plaintiff may, on motion, be 
compelled to make his pleading 

more definite and certain. 25 

Motion to suppress depostions. 85 

Motion to produce document at 
trial...96, 97 

MISTAKES. 

Correction of..138, 139 

MEETING OF THE BOARD. 

Time and place of... 97 

Meet first Mondays of March, June, 
Septemb’r and Decemb’r of each 

year. 97 

Sit six days in counties with popu¬ 
lation under ten thousand, and 
nine days in counties that have 
over nine and not more than 
thirty thousand, population ex¬ 
ceeding thirty thousand, may sit 

fifteen days..97, 98 

Maps or plats worn out or defaced, 
may order a new one, &C...145, 146 

N. 

NAVIGABLE RIVERS. 

[See water courses.! 































INDEX. 


357 


NEWSPAPERS 

May at their option authorize and 
direct the subscription and pre¬ 
sentation of public newspaper 
printed in their county; Recorder 
on certified order to that effect, 
to subscribe for and keep in his 
office one copy of each newspa¬ 
per published in his county, and 
to cause the same to be bound 133 134 

O. 

Opening and closing the case. 31 

OFFICES. 

Offices must be furnished by the 
board for county officers. 123 

Removal of delinquent officers . 

The board may remove any delin¬ 
quent county treasurer from of¬ 
fice after suit has been commen¬ 
ced on his bond. 107 

P. 

PLANK, MACADAMIZED AND GRAVEL 
ROADS. 


May be taken possession of by the 
county when the same has been 

abandoned by the company. 108 

Assessors under section 2 of the 
gravel road law allowed $2.00 

per day. 120 

The road must be five miles long.. 120 
Must be completed in two years... 120 
Rock road may be constructed. 121 


The act of 1865 authorizes all gravel 
roads organized under existing 
laws, which has completed three- 
fourths of its line, may be allowed 
one year’s time to complete the 
road. 121 

PRECINCTS. 

The board of commissioners may 
establish one or more places of 
voting in a township, &c. 126 

POOR. 

Board to contract with one or more 
skilled physicians to attend the 
poor in their county. 140 


Must allow bills of physicians who 
have been employed by trustees, 

&c. 140 

Board must raise money to take 

care of the poor. 141 

To raise taxes for the same. 141 

Residents.in the county entitled to 
the benefit of the poor fund 

only.141, 142 

What takes to constitute residence 
for to entitle to admittance to the 

poor house.142, 143 

Poor to be removed to the poor 

house by the board. 143 

Superintendent to give bond. 143 

Taxes may be raised by the board 
to purchase land, erect buildings, 

.143; 144 

Farm may be purchased, &c. 144 

The board may appoint a board of 
visitors to visit the poor house, &c 144 
The visitors to be paid as the board 

shall adjudge. 144 

When a resident of the county has 
lost his or her eyesight, or by 
casualty has become otherwise 
unable to support themselves by 
reason of bodily infirmity, and 
he or she has a wife or husband 
living, the board may make an 
order to keep them as poor per¬ 
sons, 'and not separate them. 145 

PRIVATE ROADS. 

How laid out. 301 

Form of petition.301, 302 

Twenty days’ notice to be given of 
the time and place of filing of 

the petition. 301 

Form of notice.302, 303 

Expense must be borne by appli¬ 
cant. 303 

Promissory r notes and bills of ex¬ 
change, form of.341, 342 

Q. 

Qualification of petitioners in case 
location and change of high¬ 
ways.184, 185 

R. 

RECORDS. 


Record of the board, form of, in 

contested election cases. 34 

Record must show the finding of 
the board... 35 
































358 


INDEX. 


Record in case of continuance to 


take depositions. 83 

Record, destruction of, to be re¬ 
stored by the board. 112 


When any record of the county 
has been destroyed, the board 
must, on being notified by the 
auditor of the county, meet at 
such time and place, to be desig¬ 
nated by the auditor, to restore 
such record... 112, 113, 114, 115, 116 
Case of destruction of records of 
court, the board must appoint a 
commissioner to restore the same, 
may remove such commissioner 
for failure to perform his duty or 

for incompetency.115, 116 

In case of destruction of assess¬ 
ment rolls, or duplicate, &c., 
board must cause new^assessment 

to be made. 

Records of the county officers to be 

furnished by the board. 123 

Recorder to make out index to his 
record, charge same to county... 134 
Record to be purchased by the 
board of commissioners in case 
of change of boundaries of a 
county, and they must cause all 
deeds of land attached to their 
county to be recorded in said re¬ 


cord. 124 

Records in case new county formed 
out of old one. 141 


ROAD TAX. 

The township trustee, with the con¬ 
currence of the board, must as¬ 
sess a road tax. 122 

RAILROAD. * 

Appropriation to....~. 139 

County and township may make 
appropriation to aid in the con¬ 
struction of. 247 

The appropriation to be made by 
the board of commissioners qn 

petition. 247 

In case of county appropriation the 
petition must be signed by one 

hundred freeholders.247, 256 

Petition for township appropriation 
to be signed by twenty-five free¬ 
holders . 247 

Board to order polls opened, &c... 247 

The polls must be opened not less 
than 30 nor more than 60 days 
from the filing of the petitiom.247,248 


Notice of holding election to be 

given by auditor. 248 

Notice must be published in paper 

for four weeks.248, 260 

What notice must contain. 248 

Notice must, in case of county ap¬ 
propriation, be posted in three 

public places. 248 

In township appropriation, notice 
must be stuck up and publication 
made in ten public places ...248, 260 

The election, how held, &c. 

[249, 250, 263, 264 
Board of canvassers, when they 

must meet. 250 

If the majority of the votes cast 
are in favor of the appropriation 
the board must, at their ensuing 
June session, make a levy for a 

special tax. 250 

Tax levied cannot exceed one per 
cent, upon the real and personal 
property of the county or town¬ 
ship for any one year...250, 267, 268 
No donation shall be made to any 
railroad until it has been located 

or work done. 251 

Railroad fails to commence work 
within one year from the levying 
of such tax, forfeits right to do¬ 
nation . 252 

In the levying of the tax the board 
must comply with both the letter 

and spirit of the law.253, 254 

They are a court of inferior juris¬ 
diction, and they must follow the 
law, or their act will be void..254,255 


Power conferred upon the freehold¬ 
ers, &c. 256 

Form of petition when county ap¬ 
propriation is prayed for. 256 

The petition must ask for a specific 

amount. 257 

The amount asked for must not ex¬ 


ceed two per cent, on the real and 
personal property of the township 
or county, as appears on tax du¬ 
plicate for preceding year. 257 

The railroad must have been or¬ 
ganized at the time of filing the 

petition. 258 

The board must examine the peti¬ 
tion, and see that it is correct in 
form, that it has been properly 

signed.257, 258, 259 

Form of record of the board...259, 260 

Form of notice. 261 

Auditor’s certificate. 261 

Sheriff’s certificate, form of.261, 262 

The certificate of the auditor and 





































INDEX. 


359 


sheriff to be entered of record by 

auditor. 

Township appropriation, form of 


petition for.262, 

What you must establish when you 

present your petition.263, 

Inspectors to meet.264, 


Form of statement of board of can¬ 
vassers in case of county appro¬ 
priation . 

Fonn of statement of board of can¬ 
vassers in case of township ap¬ 
propriation. 

Statement of board of canvassers 
to be filed and recorded in the 

auditor’s office. 

The first levy must be equal to one- 
half the amount of taxes to be 

raised.267, 

The board must see that the law 
has been fully complied with in 

all things.267, 268, 

For further information see notes 
on pages 270,272,273,274, 275, 
276, 277, 278, 279, 280, 
Record for public meeting, form 

for. 

Their liability for stock killed, 
where their road is not securely 

fenced (Act 1863).317, 318, 

Action before justice of the peace 
to recover damages for stock 

killed, how brought.320, 

Complaints for stock killed.322, 

Ten days’ notice of the trial must 

be given. 

Service may be on a conductor or 

on an officer. 

Service on conductor must be by 

copy. 

What causes may be united and 
what may not.322, 

S. 

SPECIAL SESSION. 

How and by whom called.97, 

Six days notice must be given, un¬ 
less an emergency exists, &c.... 
Form for auditor s notice to con¬ 
vene the board.98, 

In special session may transact all 
business of the county which re¬ 
quires their attention; may meet 
on their own adjournment, and 
adjourn when they are through 

with business. 

Settlement with the county treasurer 
to be made by the board at the 
June session of each year. 


SALES. 

The board has authority to sell the 
public grounds of the county, 
and to purchase in lieu thereof 
other grounds in the name of the 


county. 104 

Form of bond. 104 


Sale of school land on petition. 112 

May authorize auditor to sell any 
land owned by the county, and 
to collect money arising from 
sale. 137 

SINKING FUND. 

Money collected by taxation to be 
invested in bonds as a sinking 
fund for the liquidation of county 
debt.105, 106 

SCHOOL FUND. 

Common and Congressional school 
fund to be examined by the audi¬ 
tor, the amount held in trust by 
the county, the auditor to report 
to the board the condition of said 
funds; if they are satisfied with 
his report, the board must order 
it to be spfead on their record* 

The auditor, for making out his 
report, must be allowed by the 
board for his services. 120 

Surplus revenue fund belonging to 
common schools of the county, 
or any part of it, &c.146, 147 

SOLDIERS’ MONUMENT. 

The boards of county commis’ners 
may procure a book for the pur¬ 
pose of securing a subscription 
to erect near the county seat, and 
whenever the fund shall be suffi¬ 
cient, they shall cause the mon¬ 
ument to be erected to the mem¬ 
ory of soldiers who lost their 
lives in putting down the late 
rebellion; the monument will be 
under the control of the board 
of commis’ers of the county, 123, 124 

SILK. 

The board of commissioners may 
pay on every pound of silk in the 
county—for cocoons, fifteen cts., 

reeled silk, twenty-five cts. 134 

To be granted on certificate of ti 


262 

263 

264 

265 

265 

265 

267 

268 

269 

281 

343 

319 

3 21 

323 

320 

320 

320 

323 

98 

98 

99 

97 

107 
































360 


INDEX, 


justice of the peace. 135 

Sheriff must serve notice on view¬ 
ers of highways, and all proces¬ 
ses of the board. [See summons.] 191 

Streets “and alleys, how located. 145 

T. 

TRIAL. 


After the issues are joined, board 

must proceed with the trial. 31 

Witnesses to be called and sworn.. 31 
Oath to be administered, form of... 31 

TREASURER. 

Suit on his bond to be ordered by 
the board. 138 

TOWNSHIPS. 

County to be divided into. 145 


TAXES. 

The board must assess the neces¬ 
sary amount of taxes to defray 

county expenses.. 107 

May exempt any one from poll tax.. 108 
Illegal tax to be refunded by the 

board.139, 140 

Loss in State tax to be made up... 140 

TRUSTEES OF TOWNSHIP. 

Must report to board at March ses¬ 
sion of each year, giving condi¬ 
tion of finance, &c. no 

Allowance per day three dollars... 138 

TOWNS. 

May be incorporated by the board, 135 
Incorporated towns may annex con¬ 
tiguous territory. 135 

How an] incorporated town must 
proceed to annex contiguous ter¬ 
ritory . 157 

The reason must be given in the 
petition for the annexation, &c... 157 
Petition to be filed by the trustees 

of the incorporated town. 157 

Notice of filing the petition to be 

given for thirty days, &c. 157 

Petition to be verified.157, 158 

Form of petition.157, 158 

Form of notice.158, 159 


A copy of the notice must be served 

on the land owners..'.'159 

Any person living on the territory 
proposed to be annexed, or in 
the incorporated town, may come 

in and resist the annexation. 159 

Name may be changed. 300 

Form of petition for. 301 

How to proceed before the board 
in such cases. 301 


V. 

VACATION OF STREETS AND ALLEYS. 


Any person or corporation interest¬ 
ed in any real estate may vacate 298 

Form of petition. 298 

Notice of the pendency of the pro¬ 
ceeding must be given by publi¬ 
cation in newspaper for thirty 

days, &c. 299 

Form of notice. 299 

How to proceed before the board.. 299 
Consent of adjoining property own¬ 
ers must be obtained. 300 

Form of consent. 300 

VIEWERS OF HIGHWAYS. 

Must meet. 191 

May adjourn. 192 

They must make the road out by 
meets and bounds on the best 
way not running through any 
man’s inclosure of one year’s 
standing. 192 


They should not be confined to the 
wants of any particular commu¬ 
nity, but should grasp in the 
wants of the whole people in 

general. 192 

The statute that requires them to 
locate a highway on the best 
ground, does not authorize them 
to depart materially from the path 

marked out by the petition. 193 

Report of viewers, form of.. 193 

Form of objection to a highway be¬ 
cause it is not of public utility, 

.194, 195 

Other viewers may be appointed. 195,196 
If the second viewers report unfa¬ 
vorable to the utility of the road 
the board can not open it unless 
the petitioners open and maintain 

it at their own expense. 195 

Remonstrance for damages, form of 196 
Viewers appointed by the board... 198 
They must view and assess claim-. 
ant’s damages .. 198 






































INDEX. 


361 


What viewers should take into con¬ 
sideration in assessing damages.. 198 
Remote and, consequential dam¬ 
ages...198, 199 

They should take into consideration 
the benefit the road will be to 

the land, &c. 199 

Report of viewers, when made and 
form of.199, 200 

VACANCY IN OFFICE. 

Vacancy in the office of commis¬ 
sioner, how filled, &c . 5 

The appointee to hold his office un¬ 
til the next election, &c. 5 

But when vacancy is produced by 
temporary cause, holds until dis¬ 
ability removed. 5 

Vacancy in county and township 
offices filled by board, except jus¬ 
tice of the peace. 137 

W 

WITNESSES. 

Who competent at common law... 53 
Husband and wife incompetent ... 53 

All parties to the suit incompetent. 53 
Persons whose pecuniary interests 

are involved disqualified. 53 

Communication between husband # 
and wife could not be disclosed.. 53 
At common law children under 14 
years are not allowed to testify... 54 
Communication between client and 

attorney.54 

The act of 1867 adopts the com¬ 
mon law rule as to competency 
of witnesses, except it permits 
parties at interest, parties litigant 

testify in cases.54, 55, 56 

Examination of witnesses. 56 

Oath. 56 

Separation at discretion of board... 57 
Can only testify as to such facts as 
are within his own knowledge... 57 
Leading question cannot be asked. 57 
Exception to the rule as to asking 

leading questions. 57 

Opinion of witness, &c . 58 

Cross-examination. 58 

Must be confined to subject matter 

of the examination-in-chief.. 58 

When contradicted cannot be re¬ 
called to be re-examined as to 

his former evidence. 59 

Witness may be impeached. 59 

By showing his former statements 
in conflict with what he said on 
oath. 59 


Foundation for impeachment must 

be laid, &c . 59 

Statements out of court to impeach 

him. 59 

Statements out of court may be 
shown to uphold his evidence 

on trial. 59 

If he says he don’t recollect what 
he said, you may show what his 
statements were.59, 60 

WEIGHTS AND MEASURES. 

Weights and measures to be pro¬ 
cured by the board for the use of 
the county.135, 136, 137 

WET LAND. 

Any person not a corporation, who 
is interested in draining wet land 
may, on petition to the board of 
commissioners where the land is 
situated, (if the same affects the 
lands of others), specifying the 
character of the work contem¬ 
plated, giving extent, hight and 
width, beginning and terminus, 

&c., together with the names of 
the owners of the land to be af¬ 
fected, &c.; the board shall ap¬ 
point appraisers to appraise and 
assess the benefits and damages 
the parties will sustain, &c... 124, 125 

wolf scALrs. 

Board may pay any sum not to ex¬ 
ceed five dollars. 137 

WATER COURSE. 

The board may declare any water 
course in their county navigable 
on petition of twenty-four free¬ 
holders of their county. 132 

Before they can declare a water 
course navigable, they must ap¬ 
point a suitable person to exam¬ 
ine the same and report to them. 132 
The report of commissioner must 
show the length of the river and 
how much can be made navigable 132 
If the board adopt the report, they 
must order it to be spread of re¬ 
cord; and if they think that the 
stream will be of public utility, 
they must order the supervisor 
of the road district in which it 
runs to take charge of the same, 
and open it for public use... 132, 133 
The board may appropriate $200 to 
open the water course. 133 












































































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